Anthony Gallagher v Information Commissioner [2025] UKFTT 1089 (GRC)

[2025] UKFTT 01089 (GRC)Case Reference: FT/EA/2024/0398
First-tier Tribunal
General Regulatory Chamber
Information Rights
Decided without a hearing
Decision given on: 11 Sept 2025
Before
JUDGE HAZEL OLIVERMEMBER AIMEE GASSTONMEMBER KATE GRIMLEY EVANS
Between
ANTHONY GALLAGHERAppellantINFORMATION COMMISSIONERRespondentDecision: The appeal is DismissedREASONSDate 2025-09-11

Background to Appeal

[1]This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 10 September 2024 (IC-307121-T4L5, the “Decision Notice”). The appeal relates to the application of the Environmental Information Regulations 2004 (“EIR”). It concerns information about a specific planning condition requested from Hart District Council (the “Council”).[2]The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).[3]On 23 February 2024, the Appellant wrote to the Council and requested the following information (the “Request”):
“Please could you provide all information that HDC hold regarding the creation, progress and discharge of Condition 35 to 14/00504/MAJOR (reference 23/01658/CON). I can access the information available on the planning portal so this information does not need to be supplied.”
[4]The Council responded on 6 March 2024. They stated that they had handled the Request under the Freedom of Information Act 2000 (“FOIA”). The Council confirmed that they held the requested information and attached the information. No exemptions were applied.[5]The Appellant requested an internal review on 6 March 2024, asking for confirmation that this was all information held. He said he was surprised there was no information or correspondence about how the requirement became a planning condition. He said he had been informed more than once over the last year that the developer had been contacted, but they had only provided information relating to one occasion. He also said he was surprised there were no internal communications regarding this breach of planning conditions.[6]The Council responded on 11 April 2024. They said they considered the Request should be dealt with under EIR. The Council attached three further documents, and said the remaining information held by them that is relevant to the Request is published.[7]The Appellant asked for further information from the Council on 12 April 2024. He made the point that the Council had stated his request related to discharge of the planning condition, when it also relates to the creation and progress of that condition. He referred specifically to five documents that he was aware should exist through correspondence with the Council. On 1 May 2024 he clarified that this was a new request. On 20 May 2024 the Council responded and provided some additional documents.[8]The Appellant raised with the Council that this did not address the question about creation and progress of the planning condition, and asked some additional questions. The Council provided an internal review response and stated that the Council “holds no further background information other than what has been published”. The Council also stated that it did not hold information in response to the Appellant’s extra questions, and apologised for a data protection error.[9]The Appellant complained to the Commissioner on 15 May 2024. The Commissioner decided:a. It was more likely than not that the Council had now made available all the information it holds. This was based on the Council’s explanation about the searches it had carried out on its internal email systems. The Council had also said that some older information may have been deleted or destroyed in line with its retention policy, and the history of this planning condition meant it was unlikely to hold much information about its creation.b. When the Commissioner asked about the specific categories of information, the Council responded to say that this information had either already been provided, was already published or did not exist in recorded form because the communication (if it had taken place) had taken place verbally.c. The Commissioner agreed that the Appellant should have been provided with the information from the later request in response to the original request. This “drip-feeding” of information may well have contributed to scepticism that no further information is held.d. The Council breached regulation 5(2) as it did not disclose all the information it held within the scope of the Request within 20 working days, but the fact the original response was under FOIA rather than EIR made no difference in practice.e. There was no breach of regulations 11 (reconsideration) or 9 (advice and assistance).

The Appeal and Responses

[10]The Appellant appealed on 7 October 2024. His grounds of appeal are:a. The search described by the Commissioner missed the information that was disclosed later, so it can only be concluded that this search was inadequate.b. The Council’s responses have been inconsistent and/or evasive, and given they denied information that did actually exist, this response should not be trusted unless a clear and consistent answer is provided.c. The information provided to demonstrate that information had been concealed was only an example. The Council was not “drip-feeding” information, they had no intention of providing the information if they had not been challenged.d. The Appellant asks for a substitute decision notice that orders the Council to take steps in relation to the request, and the substitute notice should include the breaches of Regulations 11(3), 11(4), 11(5), 5(1) and maybe 9(1).[11]The Commissioner’s response maintains that the Decision Notice was correct.a. Further information being disclosed at internal review does not indicate the decision was wrong. The Commissioner is satisfied that the Council conducted adequate searches for information held and accepts the Council’s submission that, in regard to the categories of data requested by the Appellant, all information had either been provided, was already published, or was verbal and unrecorded.b. The Commissioner can see no reason why the Council would benefit from allegedly dishonestly informing the Commissioner about the searches it conducted and the information found, nor has he seen any evidence which indicates this occurred. The Commissioner submits he was entitled to accept the word of the Council given the adequacy of the searches conducted and submissions before him.c. There was no breach of regulation 11 because the Appellant requested an internal review on 6 March 2024 and the Council provided one on 11 April 2024 (36 days).d. There was no breach of regulation 9 because there was no advice and assistance that the public authority could reasonably be expected to have offered.[12]The Appellant submitted a reply which disputes the agreed facts, and says he did provide evidence that information within the scope of the Request had not been provided, as discussed further below.

Applicable law

[13]The relevant provisions of the Environmental Information Regulations 2004 are as follows. 2(1) …“environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on—(a) the 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;(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; …… 5(1) …a public authority that holds environmental information shall make it available on request. …… 12(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if– (a) an exception to disclosure applies under paragraphs (4) or (5); and (b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. 12(2) A public authority shall apply a presumption in favour of disclosure. …… 12(4) …a public authority may refuse to disclose information to the extent that – (a) it does not hold that information when an applicant’s request is received.[14]Requests for environmental information are expressly excluded from the Freedom of Information Act 2000 (“FOIA”) in section 39 and must be dealt with under EIR, and it is well established that “environmental information” is to be given a broad meaning in accordance with the purpose of the underlying Directive 2004/4/EC. We are satisfied that this request falls within EIR.[15]In determining whether or not information is held, the standard of proof is the balance of probabilities. It is rarely possible to be certain that information relevant to a request is not held somewhere in a large public authority’s records. The Tribunal should look at all of the circumstances of the case, including evidence about the public authority’s record-keeping systems and the searches that have been conducted for the information, in order to determine whether on the balance of probabilities further information is held by the public authority. In accordance with regulation 12(4), the information is that held at the time the request is received.[16]A relevant and helpful decision is that of the First-Tier Tribunal in Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072). Although this case related to FOIA, the same approach applies to whether information is held under EIR. In discussing the application of the balance of probabilities test, the Tribunal stated that, “We think that its application requires us to consider a number of factors including the quality of the public authority’s initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed”. This decision was cited by the Upper Tribunal in Andrew Preston v Information Commissioner & Chief Constable of West Yorkshire Police [2022] UKUT 344, which also confirmed the principle that the First-Tier Tribunal has consistently applied the balance of probabilities when approaching this question.

Issues and evidence

[17]The main issue is whether, on the balance of probabilities, the Council holds further information within the scope of the Request.[18]By way of evidence and submissions we had an agreed bundle of open documents, which we have read and taken into account in making our decision: Discussion and Conclusions Is further information held?

Discussion and Conclusions

[19]We have considered the Appellant’s main points of appeal.[20]The search described by the Commissioner missed the information that was disclosed later. We have considered the scope of the searches as described by the Council to the Commissioner. There were searches of the internal email system and messaging system using the following terms - site address of the development, planning reference numbers, and name of developer including specific staff members assigned to this development. They also reviewed the information that had been submitted to them as part of the Conditions application, and provided any documentation that wasn’t available on the Council’s Public Access system. We are satisfied that this appears to be a reasonable and appropriate search for the requested information.[21]We note the Appellant’s point that more information was disclosed later, which could indicate that the initial search was inadequate. However, the information provided to the Commissioner about searches is dated 2 September 2024. This is after the Council had provided further information during the internal review and in response to the second request. The Council is therefore describing the totality of the searches. The Council goes on to say, “All information that the Council has found to be relevant to the requests received has been disclosed.” We note that this refers to “requests” in the plural, which indicates that the Council’s answers about searches relate to the totality of the requests from the Appellant. The Commissioner also went back to the Council to clarify the position related to some specific communications, and the response explains, “I have spoken to the case officer and he has confirmed that we have provided all the recorded communications and that any others were verbal.”[22]The Council’s responses have been inconsistent and/or evasive. It does appear that the Council did not initially disclose information that was within the scope of the Request. They indicated that all information they held had been provided, and then provided more information later. Their answers to the Appellant’s queries were not always clear. This is relevant to our assessment of whether all information has now been provided.[23]The information provided to demonstrate that information had been concealed was only an example. The Appellant raised five specific potential documents with the Council in what became his second request, and this resulted in the disclosure of some additional information. He says this was only an example of missing information, and the Council had no intention of providing the information if they had not been challenged. The disclosure of additional information in response to a specific challenge is relevant to our assessment of whether all information has now been provided.[24]We have considered the sequence of events and the points set out above. As set out in Bromley, our task is to decide “whether the public authority is likely to be holding relevant information beyond that which has already been disclosed.” We understand the Appellant’s overall point to be that the Council’s inadequate handling of the matter suggests that they still have not disclosed all of the information within scope of the Request.[25]The test to be applied is the balance of probabilities. This means more likely than not. We note the comment in Bromley that “There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority’s records.” (paragraph 13).[26]We have considered the Appellant’s points about the Council’s handling of the Request. Disclosure of additional information late and only when challenged could indicate that more information is held, or that the Council is deliberately withholding information. However, we have looked at the responses provided by the Council during the Commissioner’s investigation. The Council gave clear answers that all information within scope had been provided, and the Commissioner obtained additional clarification that some matters had been dealt with verbally. We have found that the Council conducted a reasonable and appropriate search. The Appellant has not suggested that the scope of the search as described was inappropriate. He has also not suggested any specific categories of information that are now missing. We are not aware of any reason why the Council would deliberately be concealing information.[27]Taking all of these matters into account, we find on the balance of probabilities that the Council has now disclosed all information within the scope of the Request. We cannot be certain about this, but the test is whether this is more likely than not. We can understand if the Appellant feels frustrated by the way in which the requested information has been disclosed to him. Additional information was disclosed during the internal review, and more information was disclosed when the Appellant made what was in effect a new request in May 2024. The Council did not initially deal with matters correctly. However, this is not sufficient for us to find that the Council’s clear representations to the Commissioner, expressly confirming that all information has now been disclosed, are incorrect.[28]As this is a request under EIR, we are also required under regulation 12(1) to consider whether, in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. As we have found that the Council does not hold any additional information, it would clearly not be in the public interest to order them to disclose something that they do not hold.

Other matters

[29]The Appellant also asks that any substitute decision notice should include the breaches of regulations 11(3), 11(4), 11(5), 5(1) and maybe 9(1).[30]We have not issued a substitute decision notice, but for completeness make the following points:a. The Commissioner has already found a breach of regulation 5(2) (failure to make environmental information available within 20 working days). There is ultimately no breach of regulation 5(1) as we have found on the balance of probabilities that the Council has now made the information it holds available.b. We do not find any breach of regulation 11. The Council initially dealt with the Request under FOIA instead of EIR. This was corrected on internal review. We do not agree with the Appellant’s suggestion that this means there was no proper internal review. We also agree with the Commissioner that the question of whether further information is held is the same under both FOIA and EIR.c. Regulation 9 is the requirement to provide advice and assistance. We agree with the Commissioner that there was no advice and assistance that the Council could reasonably have been expected to offer. The issue was an initial failure to disclose all of the requested information, not that the Appellant needed directing on how to access information in the public domain or reframe his request.

Conclusion

[31]We dismiss the appeal for the reasons set out above.