Desmond Fitzpatrick v The Information Commissioner [2025] UKFTT 1152 (GRC)

[2025] UKFTT 01152 (GRC)Case Reference: FT/EA/2024/0430
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 28 March 2025Date 03 October 2025
Information Rights
Heard by Cloud Video Platform
Before
JUDGE WATTONMEMBER COSGRAVEMEMBER YATES
Between
DESMOND FITZPATRICKAppellantTHE INFORMATION COMMISSIONERRespondentIn person for AppellantNot represented for RespondentDecision: The appeal is dismissed.REASONS
[1]This is an appeal against the Information Commissioner’s decision notice IC-309903-Z3H6, issued on 7 October 2024. Mr Fitzpatrick requested information from Ofgem about its ‘Feed-In Tarriff’ (FIT) scheme. The scheme provides payments for generating electricity to FIT generators who have solar panels eligible for payments. Mr Fitzpatrick was dissatisfied with the information provided by Ofgem and complained to the Commissioner.[2]Although Mr Fitzpatrick had made his request with reference to the Freedom of Information Act 2000 (“FOIA”) in the decision notice the Commissioner determined that the information Mr Fitzpatrick had requested was environmental information and so the applicable regulations were the Environmental Information Regulations 2004 (“EIR”). The Commissioner also decided that Ofgem had disclosed all information held relevant to the complainant’s request that was not subject to any exception. Background[3]On 13 September 2023 Mr Fitzpatrick made a request for information from Ofgem. This is reproduced in full at page B88 of the bundle but the matters Mr Fitzpatrick sought information on included:a. SSE Energy Supply Limited’s termination of its contractual relations with its FIT Generators.b. The transfer of the FIT Generators and/or their accounts to Ovo Electricity Limited.c. The substitution by Ovo of its “FIT Statement of Terms” for SSEESL’s statement.d. Failure of Ovo to include certain provisions of the Standard Conditions of Electricity Supply Licence in its statement of terms.e. Failure of Ovo to obtain written agreement of all FIT generators to its statement of terms.f. The knowledge by Ofgem of the above events, and any complaints or concerns it had received about them.[4]Ofgem responded on 12 December 2023. It provided some documents relevant to the first five matters Mr Fitzpatrick requested information about. In response to the sixth matter it also provided information concerning the number of complaints it had received.[5]Mr Fitzpatrick requested an internal review on 22 December 2023 and there was further correspondence between Ofgem and him over several months.[6]Ultimately, Mr Fitzpatrick was not satisfied with Ofgem’s response and so on 28 May 2024 he made a complaint to the Commissioner. On 7 October 2024 the Commissioner issued the decision notice, determining that:a. The information sought was environmental information.b. On the balance of probabilities Ofgem had provided all the information that fell within the scope of the request, except for information falling within regulation 13(1) EIR. Regulation 13(1) concerns personal data and is discussed further below.c. Ofgem failed to comply with the statutory deadlines for providing the information. Grounds of Appeal[7]Mr Fitzpatrick filed his appeal with the following grounds of appeal:a. The Commissioner failed to investigate the Appellant’s complaint of 28 May 2024 properly, which is to say objectively, thoroughly, carefully and fairly.b. The Commissioner misrepresented and misconstrued the terms of the request to Ofgem dated 13 September 2023.c. The Commissioner misrepresented and misinterpreted the provisions of regulation 2(1) EIR.d. The Commissioner misinterpreted and misapplied regulation 5(1) of the EIR.e. The Commissioner misapplied regulations 12 and 13 of the EIR and in doing so misrepresented the Appellant’s request and complaint to the ICO.f. The Commissioner failed to investigate Ofgem's deletion of the Appellant’s request properly.g. The Commissioner failed to take into account relevant considerations in reaching its decision.h. The Commissioner placed disproportionate reliance on irrelevant considerations in reaching its decision. Preliminary legal issue: was the information requested ‘environmental information’?[8]We will first address Mr Fitzpatrick’s third ground of appeal because the applicable law for the other grounds depends on our conclusion in respect of that ground.[9]Regulation 2(1) of the EIR defines environmental information.

(d) […]; (e) […] and (f) […]);

[10]Mr Fitzpatrick argues that the Commissioner has made several mistakes in considering whether the information requested amounted to environmental information. He argues that we must decide four things. First, whether it was appropriate for Ofgem to treat the entirety of Mr Fitzpatrick’s request as a request under the EIR when he expressly sought the information under FOIA. Second, whether as a matter of law his letter of 13 September 2023 constituted an unintentional request under the EIR. Third, whether the Commissioner misrepresented the EIR and fourth whether the Commissioner misinterpreted the EIR.[11]We find that the first and second points raised by Mr Fitzpatrick amount to the same thing. If the information is ‘environmental information’ the public body is obliged to follow the EIR, no matter how the request is labelled. It is clear from the explanatory memorandum to the EIR that the EIR were designed to provide rights over and above those in FOIA for environmental information. For that reason, the EIR are generally perceived to be favourable to those who request information. Mr Fitzpatrick does not explain why his request would have had better prospects of success under FOIA.[12]The Commissioner found that the information was environmental information. We agree with that outcome for the reasons set out below. We do not consider that the Commissioner misrepresented or misinterpreted the regulations as suggested by Mr Fitzpatrick. The regulations were set out correctly. However, we consider that the Commissioner’s analysis at paragraphs 23 and 24 of the Decision Notice did not sufficiently set out the Commissioner’s reasons for determining the information was environmental information in this context. It is not clear whether the Commissioner considers the information sought is environmental information under regulation 2(1) (a), (b) or (c), or a combination of any of the regulations.[13]We have considered the matter for ourselves and are satisfied that each of the six types of information requested falls within regulation 2(1)(c). In Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 the Court of Appeal set out a staged process for determining whether information falls into regulation 2(1)(c). Neither party referred to this test.[14]The first stage is that the decision-maker must identify the ‘measure’ which the information is ‘on’. We find that the measure for all six categories in this case is the FIT scheme, which clearly affects energy, a factor listed in regulation 2(1)(b).[15]The second stage is that: “Information is "on" a measure if it is about, relates to or concerns the measure in question.”.[16]The Court held that in the third stage it is permissible to look beyond the precise issue the information concerns when identifying the relevant measure, but each case will turn on its facts:
“It follows that identifying the measure that the disputed information is "on" may require consideration of the wider context, and is not strictly limited to the precise issue with which the information is concerned, here the communications and data component, or the document containing the information, here the Project Assessment Review. It may be relevant to consider the purpose for which the information was produced, how important the information is to that purpose, how it is to be used, and whether access to it would enable the public to be informed about, or to participate in, decision-making in a better way. None of these matters may be apparent on the face of the information itself.”
[17]Applying this, we are satisfied that each of the six categories of information sought by the appellant are information on the FIT scheme. Each of the first five categories of information sought by Mr Fitzpatrick concern contractual terms or contractual performance by SSE or Ovo. The sixth concerns Ofgem’s knowledge of any complaints or concerns about the contractual terms or performance.[18]The contractual terms and performance for FIT generators are critical to the measure itself; the uptake and continued functioning of the scheme depends on FIT generators’ acceptance of and satisfaction with those terms. If the scheme fails to attract new FIT generators, or if the existing FIT generators are unhappy and abandon the scheme it will cease to function. We are therefore satisfied that the information constitutes environmental information and consequently it is the EIR which will provide the legal framework for determining the other issues.[19]Mr Fitzpatrick suggested that one of the reasons that Ofgem treated the request as having been made under the EIR was because the EIR provides for an exemption relating to internal communications under regulation 12(4)(e). However, as was explained at the hearing, Ofgem did not claim that exemption. None of the documents the Tribunal has seen in evidence (OPEN or CLOSED) demonstrate that internal correspondence was withheld. Legal framework Jurisdiction of the Tribunal[20]Regulation 18 of the EIR states that the appeals provisions of FOIA (Part V) apply for the EIR, with exceptions that are not relevant here. Section 58(1) of FOIA provides that the Tribunal shall allow the appeal or substitute the notice if one of two conditions are met.a. The decision notice is not in accordance with the law; orb. If the decision notice involved an exercise of discretion by the Commissioner, the Commissioner ought to have exercised his discretion differently.[21]If the Tribunal does not consider that at least one of the conditions is met, then it shall dismiss the appeal.[22]Section 58(2) allows the Tribunal to review any finding of fact on which the decision notice was based. Requests for information under the EIR[23]Regulation 5(1) requires a public authority that holds environmental information to make it available on request.[24]Whether material is ‘held’ is a question to be determined by the Tribunal as a matter of fact, using the ordinary meaning of the word: University of Newcastle upon Tyne v Information Commissioner and BUAV [2011] UKUT 185 (AAC). The search for the information must be reasonable, which is also a question of fact for the Tribunal.[25]There are several provisions concerning the disclosure of personal data under the EIR. The relevant provision here is regulation 13(1), which when read with regulation 13(2A)(a) states that when the information requested includes personal data of which the applicant is not the data subject, a public authority must not disclose the personal data if disclosure to a member of the public otherwise than under the EIR would contravene any of the data protection principles. Issues[26]The remaining issues we must determine are therefore:a. Whether, on the balance of probabilities, more information within the scope of the request is held.b. Did the withheld material fall within the exception in regulation 13 concerning personal data? Evidence and documents[27]We received an OPEN bundle of 410 pages. In addition, we were provided with a letter from Mr Fitzpatrick to the ICO dated 6 March 2025, a list of proposed revisions to the bundle made by Mr Fitzpatrick, OVO’s statement of FIT terms, a list of documents Mr Fitzpatrick seeks from Ofgem dated 20 February 2025 and Mr Fitzpatrick’s skeleton argument.[28]We were also provided with a CLOSED bundle which we have reviewed in full. That bundle is subject to a direction made by a Tribunal Registrar under Rule 14 that it may not be disclosed to Mr Fitzpatrick. Having reviewed the material the Tribunal agreed that the registrar’s order was justified. The hearing[29]Prior to the hearing both the Commissioner and Mr Fitzpatrick had confirmed they did not intend to attend the hearing. However, Mr Fitzpatrick did attend. The Tribunal was satisfied that it was in the interests of justice to proceed, notwithstanding the Commissioner’s absence. The Commissioner had been notified of the hearing and had prepared a full response to Mr Fitzpatrick’s grounds. It was not necessary to revisit that ruling at any point during or after the hearing.[30]Mr Fitzpatrick took us through his skeleton argument and the grounds of appeal he had raised. His oral submissions were consistent with his detailed written submissions. We reserved our decision. Discussion and conclusions Whether more information in the scope of the request is held[31]The decision notice sets out the search that Ofgem undertook for the information sought by Mr Fitzpatrick. The stages of that search were:a. Ofgem identified the mailbox of the most relevant staff member who dealt with the FIT scheme and searched the mailbox for “SSE”, “SSEESL” or “SSE ESL” and “Ovo” together.b. This returned 7000 documents being identified as potentially containing information sought by Mr Fitzpatrick.c. Ofgem considered that the request for information was so general that it was not possible to conduct a more specific search, nor was it reasonable to expect Mr Fitzpatrick to refine the request.d. A senior manager and two FIT scheme staff manually reviewed the 7000 documents.e. 13 documents were identified as relevant to the request.f. Ofgem disclosed most of the information contained within those documents, but redacted some of the information “with only third party personal data redacted under regulation 13.”[32]We find that on the balance of probabilities Ofgem does not hold any additional information within the scope of the request. The search done by Ofgem was extensive, and required manual review of a very large number of documents. The search terms used were reasonable to identify information that was potentially disclosable under Mr Fitzpatrick’s request. The search terms used were sufficiently wide to capture information on each of the six parts of Mr Fitzpatrick’s request. We find that the search undertaken was reasonable in the context of this request for information.[33]Mr Fitzpatrick does not accept that all the information in the scope of his request has been disclosed. He considers that there were missing documents and communications, and evidence was inappropriately redacted. He has reached that conclusion through review of the disclosed information, and argues that in several instances the disclosed material refers to other information that has not been provided to him (such as a meeting due to take place on 12 February 2021). He also submits that email attachments are missing, or that records appear not to cover a particular period of time or topic.[34]Mr Fitzpatrick has reviewed the information and chronology of events very closely but we do not agree with his conclusion that there is more available information that has not been disclosed. There are at least two further explanations. The first is that the information does not exist at all. The second is that the information is not actually disclosable in relation to the request made by Mr Fitzpatrick. For example, Mr Fitzpatrick relies on “The absence of any disclosed documentation regarding Ofgem's review(s) of OVO's so-called "Feed-in Tariff (FIT) Statement of Terms" in relation to the transfer of SSE generators to OVO.” It is not clear to us why Mr Fitzpatrick thinks there should have been such a review at all.[35]In addition, the EIR provide a right to disclosure of information, not documents. The fact an email which contains information within the scope of the requesthas an attachment does not make that attachment disclosable under the EIR. The information within the attachment must be reviewed on its own terms. We discuss the redacted material below. Did the withheld material fall within the exception in regulation 13 concerning personal data?[36]In his oral submissions Mr Fitzpatrick confirmed he was not seeking any personal data. Having reviewed the CLOSED bundle we identified two redactions that are not personal data. These are the two redactions circled by Mr Fitzpatrick at page 294 of the OPEN bundle. However, they do not fall for disclosure because the redacted information does not fall within the scope of the request. The EIR provide a right to information and not documents. Where information in a document does not fall within a request the public authority is not under any duty to disclose it.[37]We are satisfied that the remainder of the withheld material constitutes personal data and is therefore exempt from disclosure under Regulation 13(1). We are satisfied that disclosure of the withheld material would breach the data protection principle of ensuring appropriate security of the personal data.[38]The decision notice was therefore in accordance with the law. For completeness, we will address each of Mr Fitzpatrick’s grounds of appeal below. a. The Commissioner failed to investigate the Appellant’s complaint of 28 May 2024 properly, which is to say objectively, thoroughly, carefully and fairly.[39]This is not within the Tribunal’s jurisdiction. Our task as set out in section 58 of FOIA is to determine whether the outcome in the decision notice is in accordance with the law, not how the Commissioner arrived at that outcome. b. The Commissioner misrepresented and misconstrued the terms of the request to Ofgem dated 13 September 2023.[40]Mr Fitzpatrick says that the request was misrepresented and misconstrued in the Decision Notice because it a) did not state that Mr Fitzpatrick made the request under FOIA and b) there was no paragraph 6 in Mr Fitzpatrick’s letter of 13 September 2023.[41]Nothing can turn on this point because of our conclusion that the EIR applies to these proceedings. Even if we are wrong, Mr Fitzpatrick has not set out how applying the FOIA regime would have made any difference to the outcome. c. The Commissioner misrepresented and misinterpreted the provisions of regulation 2(1) EIR.[42]We have addressed this point above. The information request fell within the EIR. d. The Commissioner misinterpreted and misapplied regulation 5(1) of the EIR.[43]Mr Fitzpatrick says that there is no ‘relevance test’ for EIR requests. This is a misreading of what the Commissioner is saying. The right to the information is only to the requested information. If the information has not been requested the public authority is under no obligation to provide it. This is not a relevance test but the gateway to any right to information under the EIR. The Commissioner’s point was that the public authority searched for the information that Mr Fitzpatrick had requested.[44]There is no need to state any other exemptions relied on, because no other exemptions were relied on.[45]Mr Fitzpatrick also says that the Commissioner should have differentiated between the six categories of information requested at this point. We do not see the relevance of this. The Commissioner had not decided that any category of the request was not disclosable.[46]The other points on this ground relate to the adequacy of searches, which is addressed above. e. The Commissioner misapplied regulations 12 and 13 of the EIR and in doing so misrepresented Mr Fitzpatrick’s request and complaint to the ICO.[47]In his reply Mr Fitzpatrick explains that his complaint under this ground is that “the ICO preoccupied itself with regulations 12 and 13 of the EIR when these provisions were irrelevant to his information request because he had made clear to Ofgem from 22 December 2023 that he had no wish to see the personal data of other people.” Mr Fitzpatrick explained that he did not consider all the redactions were personal data and circled the redactions he disagreed with in copied at page 291-300 of the OPEN bundle. We have addressed this issue above; all but two redactions were personal data exempt from disclosure. The remaining two redactions were information which did not fall within the scope of information requested. f. The Commissioner failed to investigate Ofgem's deletion of Mr Fitzpatrick’s request properly.[48]This fails for the same reasons as ground a. Our task is not to evaluate how something was investigated, but whether the outcome was in accordance with the law. g. The Commissioner failed to take into account relevant considerations in reaching its decision.[49]The considerations that Mr Fitzpatrick considers relevant are set out at paragraph 55 of the grounds of appeal. As it is a lengthy list we have not reproduced it here. We have considered each of the ten issues and do not accept that any of the issues raised were relevant to the Commissioner’s task. The claim that Ofgem has not checked the seven redacted emails is not made out. The Tribunal has reviewed those emails and has explained its own assessment above. h. The Commissioner placed disproportionate reliance on irrelevant considerations in reaching its decision.[50]Mr Fitzpatrick considers that some parts of the decision notice are irrelevant to the decision. These include the application of regulation 13, the content of his request and the definition of environmental information, which we have already addressed above. He also cites the drafting information requests guidance as irrelevant. We cannot see that this played any part in the decision. Rather, it was likely included to be helpful to Mr Fitzpatrick.[51]In addition, Mr Fitzpatrick raised the question of whether a change to the exemption relied upon was ‘out of time’. It is true that Ofgem were regrettably late in dealing with Mr Fitzpatrick’s request, but this was addressed fully by the Commissioner in the Decision Notice. Moreover, late reliance on an exception is not a bar to it being relied upon: Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606. In accordance with Birkett, the ordinary Tribunal procedure has been followed and we consider that both parties had sufficient opportunity to make representations on any issues raised in the Decision Notice under the correct legal framework of the EIR.[52]For those reasons, the appeal must fail.[53]Mr Fitzpatrick clearly cares very deeply about this request. He had thought carefully about his submissions and his written communications were extremely detailed. As we have determined that the requested information is environmental information it is not necessary for us to consider the disclosure regime under FOIA. However, we note that neither party made any submission that Mr Fitzpatrick would have actually been able to obtain what he sought if FOIA was applied instead of the EIR. Decision[54]The appeal is dismissed.[55]This OPEN decision includes all points material to our decision. We do not consider it necessary to produce a CLOSED decision. Signed Date: Judge Watton 28 September 2025