Hearing Heard on GRC - CVPHearing Heard on: 30 June and 3 July 2023.
Information Rights
Decision given on: 10 July 2023.
Before
Tribunal Judge: Brian Kennedy KCTribunal Member: Kate Grimley Evans
Between
EDMUND PLOWDENAppellantTHE INFORMATION COMMISSIONERRespondentEdmund Plowden as a Litigant in Person. for AppellantSapna Gangani, Solicitor within the Information Commissioners’ Office in writing the Response dated 19 December 2022. for RespondentDecision: The appeal is allowed, and the Tribunal direct the Bristol City Council to release the withheld Report.REASONSDate 2023-07-10
[1]the Regulations must be interpreted consistently with the Directive and in accordance with normal EU principles including the requirement that exceptions be interpreted restrictively but not so narrowly as to defeat its purpose of allowing public authorities to think in private;[2]the exception cannot cover speculation or preliminary thoughts based on limited research and is concerned with ‘information’ that is held. It is only engaged if there has been a request and it is the information in the documents that is the subject of the request and the duty. It is not engaged when a piece of work is complete in itself. The terms of the request are important as the exception is wider than just ‘material in the course of completion’ and includes information that merely relates to that material;[3]adverse consequences must not be made a threshold test for regulation 12(4)(d), it is simply a relevant factor that only arises if the exception is engaged;[4]material must have a physical existence and it is not apt to describe something incorporeal like a project, exercise or a process; it is the material that must be in the course of completion not the project;[5]the exception which contains expressions of everyday use must be applied consistently with its context and contains two elements(a) that it is engaged and(b) the balance of public interests is in favour of maintaining the exception. The exception gives rise to three possibilities, that it is not engaged, that it may be engaged with the balance in favour of maintaining the exception or it may be engaged with the balance in favour of disclosure. A decision that the exception is not engaged means that disclosure is appropriate irrespective of where the balance of public interests lie. The reasoning in the Manisty case at paragraphs [30] and [31] was also very helpful in guiding us on the analysis which we needed to undertake in the reasoning we have applied– see - :[30]The exception must, nevertheless, be applied restrictively. It must not be engaged so widely as to be incompatible with the restrictive approach required by EU law. But it must not be engaged so narrowly that it defeats its purpose of allowing public authorities to think in private.[31]It is not engaged when a piece of work may fairly be said to be complete in itself. ‘Piece of work’ is a deliberately vague expression that can accommodate the various circumstances in which the exception has to be considered. In this case, I would loosely apply that description to the Stage 3 Report and work on it. The piece of work may form part of further work that is still in the course of preparation, but it does not itself require further development. One factor that may help in applying this approach in some cases is whether there has been a natural break in the private thinking that the public authority is undertaking. Is it moving from one stage of a project to another? Another factor may be whether the authority is ready to go public about progress so far. The fact that the project, exercise or process is continuing may also be relevant, although this is probably always going to be a feature when a public authority is relying on this exception. Everything depends on the circumstances. That is why it would be inappropriate in a decision to provide a detailed critique of everything said in the Implementation Guide. Cases like those referred to in the Guide will have to be dealt with on their own terms when they arise. [19]. The withheld information and specific subject matter of the request is a Report which the Council have persuaded the Commissioner forms a part of their decision-making process which is still in the course of completion. However, the Convention, (and it follows the EIR), does not clearly define “materials in the course of completion”. It seems clear to us that “in the course of completion” related to the process of preparation of the information in the Report and not to any decision- making process for which the given information has been prepared. The minutes in Closed Annex A state inter-alia:
“This proposal allocates £ [sum redacted] to update a scheme plan and begin consultation with businesses. Further funding would be required to be identified to fully develop a business case and for implementation”
. The fact that redacted sum appears to have been set aside for this bespoke report seems to us to isolate it from a bigger process that may or may not have followed. In fact, at the time of the request there is no evidence that such process has commenced or to have been followed. Similarly, the mere status of a report alone does not automatically bring it under the exception. The words “in the course of completion” suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in “course of completion” they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. In the course of completion suggests the document will have more work done on it within some reasonable time frame. For these reasons we find the withheld Report does not engage the exception claimed, under reg. 12(4)(d) of the EIR, by the Council. [20]. However, if we are wrong about that, we accept and endorse the submissions of the Appellant that the greater Public Interest lies in disclosure of the withheld Report for the reasons set out above at [16] (c) above. We agree with the factors in favour of disclosure identified by the Information Commissioner in his decision notice, paragraphs 40 to 45 but find that the arguments in favour of disclosure were stronger than the Information Commissioner had understood. As the Appellant stated, and as the Council minutes demonstrated, the Workplace Parking Levy had been a subject of significant public discourse for some time prior to the Appellant making his request and the disclosure of the report could only inform that public discourse in a significant and positive way. [21]. Considering the factors in favour of maintaining the exception which the Information Commissioner identified in paragraphs [46} to [48] of the DN, we found that the Commissioner had given excessive weight to the arguments in favour of the report being withheld. The safe space arguments in our view are weak in this case because the report was finished and would not change. It would merely serve to inform the cabinet’s thinking in the future. Disclosure of the report would not in our view materially affect the Cabinet’s safe space when discussing the proposal. [22]. We do not accept that the public would be misled by the disclosure. It is clear to us that the report was essentially a feasibility study, a pre-requisite to embarking on a potential Program and would inform public discourse. [23]. We reached the conclusion that the public interest favoured disclosure and so did not need to go on to consider the presumption in favour of disclosure under Regulation 12(2). [24]. Accordingly, we allow the appeal and direct disclosure of the withheld Report on or before 28 July 2023. Brian Kennedy KC 4 July 2023.