Terence O'Neill v The Information Commissioner [2025] UKFTT 1479 (GRC)

[2025] UKFTT 01479 (GRC)Case Reference: FT/EA/2024/0209
First-tier Tribunal
General Regulatory Chamber
Hearing Heard on: 17 July 2025Date 05 December 2025
Information Rights
Heard by Cloud Video Platform
Before
JUDGE STEPHEN ROPERMEMBER RAZ EDWARDSMEMBER MARION SAUNDERS
Between
TERENCE O’NEILLAppellantTHE INFORMATION COMMISSIONERRespondentin person (assisted by Carson Millican) for Appellantdid not appear and was not represented for RespondentDecision: The appeal is AllowedSubstituted Decision Notice:The Tribunal’s Decision Notice in case reference FT/EA/2024/0209, set out below, is substituted for Information Commissioner’s Decision Notice reference IC-265211-H5R3, dated 3 May 2024, with regard to the request for information made to Causeway Coast & Glens Borough Council by Terence O’Neill dated 5 July 2023.Substituted Decision Notice
[1]Causeway Coast & Glens Borough Council(the “Council”) must make a fresh response to the request for information made to it by Terence O’Neill dated 5 July 2023.[2]Subject to paragraph 3 below, the fresh response must:a. make clear whether or not information is held within the scope of that request; andb. if it is held, disclose such information or claim any relevant exceptions to disclosure pursuant to the Environmental Information Regulations 2004 (the “Regulations”).[3]The Council may not rely on regulation 12(4)(b) of the Regulations in its fresh response.[4]The fresh response will be subject to the rights given under section 50 of the Freedom of Information Act 2000 (as applied by regulation 18 of the Regulations) to make a new complaint to the Information Commissioner.[5]The Council must take the steps in accordance with paragraph 2 above within 35 days of this decision being sent to it in accordance with the directions below, or (if there is an application to appeal this decision) within 28 days after being notified of an unsuccessful outcome to such application or any resulting appeal.[6]Failure to comply with this decision may result in the Tribunal making written certification of this fact pursuant to section 61 of the Freedom of Information Act 2000 2000 (as applied by regulation 18 of the Regulations) and may be dealt with as a contempt of court. Directions The Information Commissioner is directed to send a copy of this decision to Causeway Coast & Glens Borough Council within 14 days of its promulgation. REASONS

Preliminary matters

[1]In thisdecision, we use the following abbreviations to denote the meanings shown: Appellant: Terence O’Neill. Commissioner: The Information Commissioner (the Respondent). Council: Causeway Coast & Glens Borough Council. Decision Notice: The Decision Notice of the Commissioner dated 3 May 2024, reference IC-265211-H5R3, relating to the Request. DPA: The Data Protection Act 2018. Dransfield case: Information Commissioner v Devon County Council & Dransfield [2012] UKUT 440 (AAC). Dransfield Court of Appeal case: Dransfield v Information Commissioner and Devon County Council [2015] EWCA Civ 454. Duty to Disclose: The duty of a public authority to make available on request any environmental information which it holds, pursuant to regulation 5(1) (set out in paragraph 26). EIRs: The Environmental Information Regulations 2004. Fees Regulations: The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. FOIA: The Freedom of Information Act 2000. Officer: The officer of the Council who was named in the Request as being the owner of the Property. Public Interest Test: The test, pursuant to pursuant to regulation 12(1)(b) (set out in paragraph 32), as to whether, in all the circumstances of the case, the public interest in maintaining the exception to the Duty to Disclose outweighs the public interest in disclosing the information. Property: The property referred to in the Request. Request: The request for information made to the Council by the Appellant, dated 5 July 2023, as set out in paragraph 5. Requested Information: The information which was requested by way of the Request.[2]Unless the context otherwise requires (or as otherwise expressly stated), references in this decision:a. to numbered paragraphs are references to paragraphs of this decision so numbered;b. to a ‘regulation’ are references to the applicable regulation of the EIRs;c. to a ‘section’ are references to the applicable section of FOIA; andd. to the Commissioner’s “investigation” mean the Commissioner’s investigation, for the purposes of section 50 (as applied pursuant to regulation 18), of the Appellant’s complaint relating to the Council’s response to the Request.

Introduction

[3]This was an appeal against the Decision Notice, which (in summary) decided that the Council was entitled to refuse the Request on the basis that it was manifestly unreasonable pursuant to regulation 12(4)(b) and that the Public Interest Test favoured maintaining the exception to the Duty to Disclose.

Background to the appeal

[4]The background to the appeal is as follows.

The Request

[5]On 5 July 2023, the Appellant contacted the Council and requested information in the following terms:
“On 11 May 2022. Causeway Coast and the Glens Borough Council (the Council) Planning Department served an Enforcement Notice under Section 131 (1) of the Planning Act (Northern Ireland) 2011 (the Act) due to a breach of the Act. The Notice was served on: The Owner of [address redacted], [name of company redacted] And [name redacted], who it was thought had an estate in the property. It has now been established that [name redacted], an employee of the Council, is the owner of the land and property to which the Notice relates. Can you confirm what steps were taken to identify the Owner before the Notice was served, Was Notice served under Section 133 of the Act? Had the employee registered his estate in the property with the Council? Can you confirm that the notice has been complied?”
. The Notice was served on: Was Notice served under Section 133 of the Act?

Had the employee registered his estate in the property with the Council?

[6]The Council responded on 18 August 2023. It refused the Request under regulation 12(4)(b) (manifestly unreasonable requests). It stated that the Request was targeting the Officer, with whom the Appellant had ongoing dealings, and that this was seen to be a personal attack on the Officer. The Council considered that this was causing a disproportionate level of disruption, irritation or distress both to the Council and the Officer.[7]On 21 August 2023, the Appellant requested an internal review in respect of the Council’s response to the Request.[8]Having not received a response from the Council regarding its internal review, the Appellant contacted the Commissioner on 19 October 2023 to complain about the Council’s handling of the Request. In essence, the Appellant disagreed that the Request was manifestly unreasonable and he considered that the Council had not complied with the statutory timeframes for responding to the Request and undertaking an internal review.[9]On 19 January 2024, the Council acknowledged the Appellant’s request for an internal review, stating that it would commence its internal review process. On 5 February 2024, the Council provided the Appellant with the outcome of its internal review, which we refer to in paragraph 77.[10]The Commissioner subsequently issued the Decision Notice.

The Decision Notice

[11]In the Decision Notice, the Commissioner considered (in summary) that:a. the Council had received evidence to the effect that the Appellant wished to deliberately cause annoyance to it and the Officer, rather than pursuing a legitimate intention to obtain information;b. there was various correspondence from the Appellant relating to the same subject, which would create an additional amount of work and would have a detrimental impact on Council staff being able to undertake their core functions;c. the exception in regulation 12(4)(b) was therefore engaged in respect of the Request; andd. having assessed competing arguments regarding the Public Interest Test, the public interest in maintaining the exception outweighed the public interest in disclosure of the Requested Information, taking into consideration the significant burden that responding would place on the Council.[12]The Decision Notice also recorded the Commissioner’s findings that:a. the Council had breached regulation 14(2), on the basis that it did not provide its response to the Request within the statutory timeframe of 20 working days; andb. the Council had breached regulation 11(4), on the basis that it did not provide a response in respect of its internal review within the statutory timeframe of 40 working days.[13]The Decision Notice did not require the Council to take any further steps.

The appeal

[14]Regulation 18 provides that the enforcement and appeals provisions of FOIA (namely Part IV, including Schedule 3, of FOIA and Part V of FOIA) apply for the purposes of the EIRs, subject to certain modifications.[15]For the reasons we have given in paragraph 44, this was therefore an appeal against the Decision Notice pursuant to the EIRs, in accordance with section 57 as applied by regulation 18.

The grounds of appeal

[16]Fundamentally, the Appellant considered that the Commissioner was wrong to conclude, in the Decision Notice, that the Request was manifestly unreasonable.[17]The material aspects of the Appellant’s grounds of appeal were (in essence) based on his views that:a. The Request was not targeting the Officer. Works were conducted at the Property without the necessary approval; this was the subject of the Request and it was not manifestly unreasonable for the Appellant to raise it. Likewise, it was not manifestly unreasonable to ask the Council if it did all it could have done to establish ownership of the Property.b. Whilst the Decision Notice referred to 'dealings' between the Officer and the Appellant, and an alleged injunction taken out by the Officer against the Appellant, this was a private matter between them and not Council business.c. The Decision Notice was incorrect to refer to the Council receiving 46 ‘requests for information’ from the Appellant (or third parties acting on his behalf). Likewise it was incorrect to say that 65% of the requests related to the Officer; only a few related to the Officer and they were legitimate requests.d. The Decision Notice also incorrectly stated that 52% of the requests related to the same subject matter.e. Whilst the Decision Notice referred to the Appellant’s various correspondence with the Council, it does not address the reasons why. The Appellant was enquiring about flawed Dangerous Structure Notices, unauthorised building works and various related matters. The public and workers at the Property may have been exposed to asbestos, as an investigation into asbestos was closed and someone was later removing asbestos from the Property.f. There were also issues relating to the Council’s code of conduct, investigation of unethical behaviour and allowing the approval of a planning application which may have been unlawful. Likewise there were issues relating to an alleged lack of openness, accountability and transparency on the part of the Council.g. There were therefore matters of public interest behind the Request. There was no desire to deliberately cause annoyance to the Council or the Officer but rather the Appellant was pursuing a legitimate intention to obtain information.

The Commissioner’s response

[18]In his response to the appeal, the Commissioner generally relied on the Decision Notice as setting out his findings and the reasons for those findings.

The Tribunal’s powers and role

[19]The powers of the Tribunal in determining the appeal are set out in section 58 (which applies pursuant to regulation 18), as follows:
“(1) If on an appeal under section 57 the Tribunal considers— (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.”
[20]In summary, therefore, the Tribunal’s remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

Mode of hearing

[21]The proceedings were held by the cloud video platform. The Tribunal Panel, the Appellant and Mr Millican (see paragraph 22) joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.[22]The Appellant was assisted during the hearing by Mr Millican, who also made submissions on behalf of the Appellant. The Commissioner did not appear and was not represented.[23]At one point during the hearing, the Appellant and Mr Millican (who were sat together) lost their connection to the video link whilst they were trying to access the bundle and approximately 3 minutes passed before they re-connected. The Panel were aware of the lost connection and proceedings were paused pending them re-connecting. When the hearing resumed, it continued from the point when the connection had been lost and the Tribunal was satisfied that nothing had been missed. There were no other interruptions of note during the hearing.

The evidence and submissions

[24]The Tribunal read and took account of an open bundle of evidence and pleadings, as well as additional written submissions from the Appellant.[25]All of the contents of the bundle, including all the submissions of the parties (as well as the Appellant’s submissions during the hearing), were taken into account, even if not directly referred to in this decision. The law The relevant statutory framework General principles

The law

[26]The EIRs provide individuals with a general right of access to environmental information held by public authorities, subject to some exceptions. Regulation 5(1) provides: “…a public authority that holds environmental information shall make it available on request.”.[27]The term ‘environmental information’ is defined in regulation 2(1) which, so far as is material, states: “…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…”.[28]The definition of ‘environmental information’ is to be given a broad meaning in accordance with the purpose of the underlying European Council Directive which the EIRs implement (Direction 2004/4/EC). See the Court of Justice of the European Union in Case C-316/01 Glawischnig v Bundesminister fur soziale Sicherheit und Generationen [2003] All ER (D) 145 and the case of Council for Business, Energy and Industrial Strategy v Henney and Information Commissioner [2017] EWCA Civ 8444.[29]Therefore, pursuant to regulation 5(1), a person who has made a request to a public authority for ‘environmental information’ is entitled to have that information made available to them, if it is held by the public authority. However, that entitlement is subject to the other provisions of the EIRs, including some exceptions and qualifications which may apply even if the requested environmental information is held by the public authority. The opening wording of regulation 5(1) (that is, the wording immediately preceding the extract of that regulation quoted above) provides: “Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations…”.[30]Part 3 of the EIRs contains various exceptions to the duty to disclose environmental informationwhich has been requested. It is therefore important to note that the EIRs do not provide an unconditional right of access to any environmental information which a public authority does hold. The right of access to information contained in regulation 5(1) is subject to certain other provisions of the EIRs.[31]Request for ‘environmental information’ are normally dealt with under the EIRs rather than FOIA, pursuant to section 39(1) (which contains an exemption to disclosure of environmental information under FOIA).

Regulation 12

[32]As noted, Part 3 of the EIRs contains various exceptions to the duty to disclose environmental information which has been requested. Within Part 3 of the EIRs, regulation 12(4)(b) (manifestly unreasonable request) is applicable for the purposes of this appeal. So far as is relevant, regulation 12 provides: “(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. (4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—… (b) the request for information is manifestly unreasonable;”.[33]Succinctly put, therefore, a public authority may refuse to disclose environmental information which is requested under the EIRs if the request is ‘manifestly unreasonable’ and if, in all the circumstances, the Public Interest Test favours withholding the information.[34]The term ‘manifestly unreasonable’ is not defined in the EIRs, but has been interpreted by case law, to which we briefly refer below.

Regulation 12(2)

[35]Pursuant to regulation 12(2), a public authority must apply a presumption in favour of disclosure of environmental information.

Relevant case law

[36]We turn now to case law regarding the term ‘manifestly unreasonable’ in regulation 12(4)(b). As we have noted, it is not defined in the EIRs. In FOIA, there is a parallel term of ‘vexatious’ in section 14(1), which provides:
“Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.”
. Case law has established that ‘manifestly unreasonable’ for the purposes of the EIRs has essentially the same meaning as ‘vexatious’ in FOIA.[37]Whilst there is also no definition of ‘vexatious’ in FOIA, guidance on applying that term has also been given in case law. We do not set out details of the case law but it is helpful to refer, in our discussions below, to the following four broad issues or themes which were identified in the Dransfield case as being of relevance when deciding whether a request is vexatious (and consequently ‘manifestly unreasonable’):a. the burden (on the public authority and its staff);b. the motive (of the requester);c. the value or serious purpose of the request; andd. any harassment or distress (of and to staff).[38]It is also important to note that it has been made clear that those four issues or themes are not exhaustive and are not intended to create a formulaic check-list and that a holistic approach needs to be taken in assessing whether a request is vexatious (or manifestly unreasonable). It was stated in the Dransfield case [paragraph 82] that: “…all the circumstances need to be considered in reaching what is ultimately a value judgement as to whether the request in issue is vexatious in the sense of being a disproportionate, manifestly unjustified, inappropriate or improper use of FOIA.”.[39]Accordingly, the Tribunal should adopt a rounded approach, taking into account all the relevant factors, in order to reach a balanced conclusion as whether a particular request is manifestly unreasonable. Discussion and findings The scope of the appeal

Discussion and findings

[40]We consider that it is important to stress the scope of the appeal.[41]As we noted in paragraph 19 (and summarised in paragraph 20), the scope of the Tribunal’s jurisdiction relates to the lawfulness of the Decision Notice. In particular, the main issue which we needed to determine was whether the Decision Notice was correct to conclude that the Request was manifestly unreasonable. Any other issues are beyond the Tribunal’s powers to determine and fall outside of the scope of the appeal.[42]Accordingly, the appeal was not about the legitimacy of any Dangerous Structure Notices or other notices served in relation to the Property, the lawfulness of any building works undertaken at the Property or the merits or otherwise of any decisions taken by the Council in connection with the Property. The appeal was also not about any allegations relating to impropriety or other wrongdoing by the Council in connection with the Property or related matters, nor the conduct of any members of the Council’s staff. We have no jurisdiction to consider or determine any such issues. Accordingly, any observations and findings we may make in connection with any of those matters are relevant only for the purposes of determining the appeal before us and not for any other purposes.

Application of the EIRs

[43]For completeness, we also briefly address the issue of the application of the EIRs to the Request, notwithstanding that there was no dispute between the parties on this point. As we have mentioned, the Council refused the Request on the basis that it was manifestly unreasonable under regulation 12(4)(b). Therefore the Council treated the Request as falling within the scope of the EIRs (rather than within the scope of FOIA). Likewise, as noted, the Commissioner issued the Decision Notice on the basis that the EIRs applied to the Request.[44]We find that the EIRs do apply to the Request. The Requested Information fundamentally relates to a Planning Enforcement Notice in respect of a specific property, and associated actions taken by the Council. These are clearly administrative measures and activities affecting or likely to affect the environment, or designed to protect the environment, as referred to in regulation 2(1)(c). Accordingly, we find that the Requested Information comprises ‘environmental information’ for the purposes of the definition of in regulation 2(1).[45]We appreciate that, at face value, some distinct elements of the Requested Information, such as the requests for information regarding steps being taken to identify the owner of the Property, might (in isolation) be seen as falling outside of the scope of the EIRs. However, when looked at in the wider context, all of the Requested Information relates to matters connected with the Planning Enforcement Notice and those elements of information are clearly being requested for the purposes of, and as part of, that wider context. In saying this, we are also mindful of the purposive approach which is to be adopted when considering what is meant by ‘environmental information’ (and having regard to the broad interpretation which is required). Accordingly, we are satisfied that all of the Requested Information falls within the scope of the EIRs.[46]For convenience, we use the term “information” below to refer (where the context permits) to environmental information as defined in the EIRs.

Whether the Request was manifestly unreasonable

[47]We turn now to the question of whether the Request was manifestly unreasonable for the purposes of regulation 12(4)(b). Given the legal framework which we have outlined above, we consider that the consideration of the four broad issues or themes outlined in the Dransfield case are useful for our consideration of this issue.[48]The Commissioner did not refer to the Dransfield case in the Decision Notice. Rather, the Decision Notice merely stated (in paragraph 13) that regulation 12(4)(b) sets a robust test for such regulation to be engaged, in that a request for information must be “manifestly” unreasonable, rather than simply being “unreasonable”. The Commissioner went on to state, in paragraph 14 of the Decision Notice, that he considered that the term “manifestly” means that there must be an obvious or clear quality to the identified unreasonableness.[49]However, in his response to the appeal, the Commissioner did refer to the Dransfield Court of Appeal case and he submitted that the Request was manifestly unreasonable in all the circumstances of the case.[50]We recognise that four broad issues or themes outlined in the Dransfield case are a helpful tool in considering potentially relevant issues as part of our broad assessment of all the circumstances and have accordingly referred to them below. However, we should stress that we have not been constrained or confined in any way by considering them. On the contrary, we have adopted a holistic approach, taking into account all of the relevant circumstances, and we have been mindful that the fundamental consideration was whether or not the Request was, essentially, a manifestly unjustified, inappropriate or improper use of the EIRs. Burden[51]As recorded in the Decision Notice, the Council cited regulation 12(4)(b) on the grounds that to comply with the Request would impose a significant and disproportionate burden on its resources, in terms of time and cost.[52]The Decision Notice also recorded that the Council had stated that it had received 46 requests from the Appellant (or third parties acting on his behalf) since 2016. The Council’s position was that 13 of these had been dealt with as ‘normal business’ or ‘general correspondence’ and that the remaining 33 were dealt with under FOIA, the EIRs and the DPA The Council had also referred to the UK GDPR, but we have just cited the DPA in this decision, for simplicity. The Decision Notice also only referred to the DPA in referencing the Council’s position. . The Council stated that 65% of the 46 The Council stated ‘43’ but we believe this was intended to refer to ‘46’ (which is also consistent with the figures quoted in the tables referred to in paragraph 57). requests related to the Officer and that 52% related to the same subject matter (the work conducted at a Council owned building abutting the Appellant’s property). The Council also stated that the figures cited only reflected the records held by its Information Governance Team, and did not take into account the Appellant’s contact with other service areas across the Council.[53]The Council also reported to the Commissioner (as recorded in paragraph 23 of the Decision Notice) that it had received correspondence from the Appellant via at least six different methods: via his personal email address, via his sibling’s email address on behalf of the Appellant’s parent, via post, via a third party, via whatdotheyknow.com and via a pseudonym. The Council stated that the Appellant (or third parties acting on his behalf) had issued correspondence to at least six generic mailboxes or specific members of staff across the Council.[54]The Council accordingly considered that the Appellant had taken a ‘scattergun approach’ in the manner he sought information from it. The Council’s view was that the frequency of the Appellant’s requests, with instances of overlap, had had a significant impact on its resources. In particular, the Council considered that the Appellant’s sustained contact since 2016 had significantly increased the amount of staff time diverted from front line duties, in order to manage his requests.[55]The Commissioner’s finding in the Decision Notice that the Request was manifestly unreasonable was primarily based on the burden of the Request, linked to the above reasons. The Decision Notice referred to the Fees Regulations and, whilst the Commissioner acknowledged that they relate to FOIA (rather than the EIRs) and are not a determining factor, he considered that they “provide a useful point of reference where the reason for citing regulation 12(4)(b) of the EIR is the time and costs that compliance with a request would expend as is the case here”. Nevetherless, the Decision Notice did not subsequently address how the Commissioner considered that the Fees Regulations were applicable in the context of the Request. The Decision Notice also did not refer to any specific amount of work which may have been required by the Council to respond to the Request. In our view, consideration of the relevant thresholds set out in the Fees Regulations was not material to the appeal, having regard to the relevant issues before us.[56]The Appellant contended that his requests to the Council did not place a burden on it. He accepted that he had made some requests for information regarding a Dangerous Structure Notice served in respect of the Property and one request regarding persons who inspected the party wall in January 2020. However, he considered that the Council had a history of not responding to requests for information and that it was wrong for the Council to subsequently claim that further follow-up correspondence was vexatious or manifestly unreasonable.[57]The Appellant also disputed the information provided by the Council regarding the nature and extent of his correspondence. In connection with the Commissioner’s investigation, the Council provided two tables which set out the Council’s position in respect of the correspondence between the Appellant and the Council. Both tables recorded the 46 requests referred to in the Decision Notice which the Council stated had been received from the Appellant (or third parties acting on his behalf) since 2016. Whilst the Decision Notice referred to these simply as 46 “requests” from the Appellant, the tables actually stated 46 “requests for information”.[58]One of the tables set out, in rows covering eight financial years (2016 to 2024) the quantity of the items of correspondence, broken down by ‘type’, a summary of the outcome, an indication of whether each item referred to the Officer and covered the same subject matter, and whether there were instances of overlapping requests. The ‘type’ of correspondence was categorised as either “dealt with as normal business” or “dealt with under the information acts”.[59]In considering the question of the burden placed on the Council by the Request, we accept that the Request was part of a wider series of requests for information and correspondence between the Appellant and the Council.[60]Our first observation regarding the 46 requests cited by the Council is that 46 requests (taken in isolation, without an assessment of context) is not necessarily a disproportionate amount over an eight year period. On average, it equates to less than 6 requests per year.[61]Moreover, when taking into account the accompanying explanations from the Council, it is apparent that those figures are in fact more anodyne. As we noted in paragraph 52, the Council stated that 13 of the 46 “requests” were dealt with by it as “normal business” or as “general correspondence”. In that regard, we consider that it was inappropriate for the Council to describe the 46 items of correspondence as “requests” when the Council did not treat them as such.[62]Consequently, the number of 46 “requests” referred to in the Decision Notice (which we consider were taken into account as such by the Commissioner) should, based on the Council’s data, have been more accurately recorded as 33 requests. On average, over the eight year period in question, that would therefore only equate to just over 4 requests per year.[63]However, it is possible that even referring to requests for information “dealt with under the information acts” is a mischaracterisation. This is because (again, as we noted in paragraph 52) the Council stated that the 33 items were dealt with under the DPA, as well as FOIA and the EIRs. As we note in paragraph 64, there was no specific evidence before us of the relevant ‘requests for information’ made by the Appellant to the Council but, given the Council’s reference to the “information acts” as including the DPA, it appears that the Council may have conflated the rights of access to personal data with rights to information under FOIA and the EIRs. We consider the right of access to personal data under the DPA to be separate and distinct from statutory rights to request information under FOIA and the EIRs. Consequently, if and to the extent that the Council took into account any subject access requests made by the Appellant under the DPA as part of its assessment of the Request being manifestly unreasonable then we consider that it may not have been appropriate to do so. However, this is an incidental observation and we make no findings in respect of it.[64]The bundle did not include any copies of the previous correspondence between the Appellant and the Council which the Council had cited. It appears that the Council also did not provide any copies to the Commissioner in connection with his investigation. Rather, based on the information before us, it appears that the Council only provided to the Commissioner the tables to which we have referred, together with some general comments from the Council regarding the nature and extent of the correspondence (the material aspects of which were reflected in the Decision Notice).[65]Accordingly, we were unable to assess the contents and nature of the Appellant’s prior correspondence with the Council. In particular, we could not verify the Council’s contentions in respect of the correspondence targeting the Officer, covering the same subject matter and overlapping requests. Regarding the latter, the information provided by the Council in the tables did not even specify the dates of the correspondence.[66]We therefore find that there was insufficient evidence to support the Commissioner’s conclusions in the Decision Notice that the Request imposed a burden on the Council based on the nature and extent of the Appellant’s prior correspondence.[67]As we have noted, the Appellant submitted that some of his correspondence was necessary because of a lack of a response from the Council to earlier correspondence. He considered that this was part of the explanation of the number of items of correspondence which the Council had referred to. Again, without sight of the relevant correspondence, we were unable to assess the contents of the correspondence with regard to that explanation. However, the table we referred to in paragraph 58 did specify (with regard to the ‘outcomes’ of the Appellant’s correspondence) that issues relating to the timeliness of the Council’s responses had been upheld on some occasions. In one instance, it also specified that a complaint had been made to the Commissioner who had issued a decision notice finding that the Council had breached regulation 14(2) by not providing a refusal notice within the requisite timeframe. There were at least three instances shown in the table where issues raised regarding the Council’s lack of timeliness had been upheld.[68]Therefore we are satisfied that the Council was sometimes late in responding to requests for information. The Council stated, in correspondence with the Commissioner dated 5 February 2024 in connection with his investigation, that it “takes its statutory obligations under the information acts seriously” and that it “is committed to its obligations under information legislation”. However, in the same correspondence it also admitted to not responding to the Request within the requisite 20 working days and not providing a response to its internal review within the requisite 40 working days.[69]Accordingly, we consider that some weight should be afforded to the Appellant’s arguments that he was contacting the Council because of a lack of response to earlier correspondence. We find that this is a factor militating against the conclusions of the Commissioner and the Council that the Request was manifestly unreasonable based on burden. Linked to that, we also find that the Commissioner erred by not taking into account these reasons for some of the Appellant’s prior correspondence with the Council.[70]Likewise, as we have noted, there was insufficient evidence for the Commissioner to properly form a view as to the nature and content of the Appellant’s correspondence with the Council in order to support a conclusion that the Request was manifestly unreasonable.[71]As we noted in paragraph 52, the Council had stated that the figures it had cited regarding the Appellant’s correspondence only reflected the records held by its Information Governance Team. In our view, it was incumbent on the Council to provide evidence regarding the Appellant’s contact with other service areas across the Council if it wished that other contact to be taken into account as part of an assessment of the Request as being manifestly unreasonable. No such evidence was provided, but only the details of the correspondence we have referred to.[72]We consider that if a public authority is seeking to rely on a history of dealings with a requestor as a significant part of its arguments that a request for information is manifestly unreasonable, then it should be expected to provide any relevant documentary evidence or information to support that, including sufficient detail to contextualise the history of that request. In the current case, we consider that it was insufficient for the Council to simply assert that there was the specified quantity of correspondence relating to the same subject matter and/or targeting the Officer. As we have mentioned, that did not reveal the full nature of the Appellant’s interactions with the Council.[73]In short, we consider that there was insufficient evidence regarding the context or history of the Council’s dealings with the Appellant to support the conclusion that the Request was manifestly unreasonable based on its burden. Accordingly, in our view the Commissioner erred in reaching that conclusion in the Decision Notice.[74]There is a further point related to our comments above regarding the alleged extent of the Appellant’s interactions with the Council. As we have noted, the Decision Notice recorded the Council’s position that 46 requests had been received from the Appellant “or third parties acting on his behalf” since 2016 and that it had received correspondence from the Appellant via at least six different methods (which included contact via third parties). It is evident from the Council’s correspondence with the Commissioner in connection with his investigation that the Council took into account the third party contact in calculating the total amount of correspondence which it stated had been received from the Appellant.[75]We consider that it was erroneous of the Council (and in turn the Commissioner) to treat those communications from third parties as being from the Appellant. Specifically, the Council stated that the Appellant had corresponded with it via his brother (on behalf of the Appellant’s mother) and via Mr Millican. In the absence of any statement to the contrary (and there was no evidence to that effect), requests for information from the Appellant’s brother or his mother, or from Mr Millican, are not requests for information from the Appellant. Consequently, this is another reason why the stated amount of correspondence from the Appellant is inaccurate.[76]We consider that it would only have been appropriate to take into account those third party communications if this was to demonstrate that there was some coordinated campaign by, or at the direction of, the Appellant. In this case, there was no evidence before us to suggest any such campaign. Rather, there was simply the Council’s view that those third parties were making contact on behalf of the Appellant, which was erroneous for the reasons we have stated.[77]A further, final, point we would make on the issue of burden is that the Council actually responded to the Request. In its correspondence with the Commissioner dated 5 February 2024, it stated as follows: “Council has now conducted an Internal Review under the EIR 2004 of Mr O’Neill’s request received on 5 July 2023. I can confirm that a response was been issued to Mr O’Neill on 5 February 2024. As a result of the review, Council informed Mr O’Neill that it holds information within scope and provided that information to him. A copy of that response has been attached at Appendix B. It should be noted that the information relating to the enforcement investigation could not have been released at the time of Mr O’Neill’s request of 5 July 2023 or Internal Review of 20 August 2023 on the basis of Regulation 12(5)(b) – Course of justice – as the enforcement action was live at that time.”.[78]We cannot reconcile the Council’s stated position regarding the burden of the Request, and that there was a “disproportionate level of disruption, irritation or distress” to the Council, with the fact that it elected to disclose the Requested Information at the time of its internal review. Given that the Council informed the Commissioner that it had disclosed the Requested Information, we also can see no sound basis for the Commissioner’s conclusion in the Decision Notice that responding to the Request would place a “significant burden” on the Council.[79]For all of the above reasons, we find that there was no material burden placed on the Council by the Request. Motive[80]We are mindful that consideration of the motive of the requester could be a relevant factor in assessing whether a request is manifestly unreasonable in all of the circumstances.[81]The Council’s position was that the Request was designed to target the Officer (at least in part). We address this further in considering the issue of harassment or distress below. As we have mentioned, the Council and the Commissioner fundamentally considered the Request to be manifestly unreasonable based on burden and there was little mention of any motivations of the Appellant in making the Request. However, we consider that the Council’s position (and the conclusion of the Commissioner in the Decision Notice) was that, essentially, there was no good motivation behind the Request on the basis that it considered that the Request was a personal attack on the Officer and was intended to cause disruption and annoyance to the Council.[82]Indeed, in setting out his conclusions in the Decision Notice, the Commissioner stated (in paragraph 28) that the Council had received evidence regarding the Appellant’s “desire to deliberately cause annoyance to it and the Council officer rather than pursuing a legitimate intention to obtain information”. That was an accurate reflection of what the Council had stated to the Commissioner in connection with his investigation. However, in our view, that statement was not an entirely accurate reflection of the evidence which we understand the Council to have been referring to.[83]Our understanding is that the Council was referring to a “third party statement provided to the Council” which was set out in an appendix to the Council’s letter to the Commissioner dated 5 February 2024. The appendix stated that the statement was “provided by email with a letter from a third-party building contractor” regarding the Appellant. However, it appears that copies of the email and the letter were not provided to the Commissioner, as they were not included in the bundle. The statement in the appendix included alleged statements from the Appellant about ‘hatred’ of the Council and the Officer and wanting to cause them annoyance (as well as covering other matters, including allegedly threatening and aggressive body language on the part of the Appellant). Even if we were to accept that evidence at face value, remarks to a third party about wanting to cause the Council annoyance do not necessarily translate into the Council’s stated position that the Appellant wished to cause annoyance as opposed to pursuing a legitimate intention to obtain information. In other words, there is no obvious correlation between the evidence presented and a view that the Request itself had no legitimate purpose.[84]In addition, we are mindful that the email and letter referred to were not provided in evidence and therefore we were unable to assess them. In particular, we had no knowledge of who the third party was and no knowledge of the wider context, including the circumstances of the alleged encounter between them and the Appellant and the matters allegedly discussed. Likewise, no witness statement was provided from the third party in question to address these issues. Consequently, we afforded little weight to that evidence in any event. We consider that the Commissioner, for the same reasons, should not have given that evidence the credence which he appears to have given to it in the Decision Notice.[85]Given our findings above regarding the previous correspondence between the Appellant and the Council, we do not consider that there is any improper motive behind the Request in the context of the wider dealings between the Appellant and the Council.[86]We also consider that the lack of complaints made to the Council (see paragraph 99) are a further factor supporting our view that there was no improper motive behind the Request.[87]Some of the issues relating to the value or serious purpose of the Request are also relevant to the consideration of the Appellant’s motive and we address those below.[88]Taking everything into account, we are satisfied that there was a proper and appropriate motive behind the Request, even when considered in the context of the broader dealings between the Appellant and the Council. Value or serious purpose[89]The Appellant stated, in his grounds of appeal and during the hearing, that the reason for the Request stemmed from concerns about flawed Dangerous Structure Notices, unauthorised building works and various related matters. He also considered that there were wider issues of public interest regarding accountability on the part of the Council for any alleged wrongdoing, as well as regarding safety issues in connection with alleged asbestos at the Property. The Appellant’s position, in essence, was that there was a legitimate basis to the Request.[90]As we stated in paragraph 42, it is not for us to make any findings regarding those issues. However, we consider (having regard to the Requested Information) there was a value or serious purpose to the Request.[91]Also, as we noted in paragraph 77, the Council had (in the outcome of its internal review) concluded that there was information relating to the enforcement investigation which could not have been released at the relevant time because the enforcement action was live. We consider that the Council’s assessment that part of the Requested Information related to enforcement action which was being taken by the Council reinforces our view that there was a value or serious purpose to the Request. Harassment or distress[92]As we have noted, the Council’s position was that the Request was targeting a specific individual; the Officer. The Council stated that it had assessed the similarities of the Request with previous requests from the Appellant, including taking into account that there was a live injunction against the Appellant brought by the Officer.[93]The Appellant disputed that the Request targeted the Officer, or that it caused a disproportionate level of disruption, irritation or distress to either the Council or the Officer. He considered that the Requested Information was simple and of a routine nature.[94]The Appellant also challenged the references in the Decision Notice to the injunction allegedly taken out by the Officer against the Appellant. As we have noted, he considered that this was a private matter between them and not Council business. He also disputed the validity of the injunction.[95]We do not consider it necessary to address the specific submissions of the Council or the Appellant regarding the alleged injunction, but in our view this would be a private matter between them and unrelated to the Council’s business. The only caveat to that would be if there was any evidence indicating that the injunction was specifically relevant to the Request or other pertinent specific matter. However, there was no such evidence. Consequently, we consider that little weight, if any, should have been given to this in the Council’s (and the Commissioner’s) assessment of the Request as being manifestly unreasonable.[96]We find that there was no evidence of distress to the Officer, or any other staff, beyond the Council’s assertion of it. In particular, there was no statement or similar from the Officer regarding any alleged harassment of them or any distress they felt as a result of the Request or any previous dealings with the Appellant.[97]We find that the Request itself was written in innocuous terms and that it was not accusatory, rude, threatening or abusive towards the Officer, the Council or any other of its staff.[98]As we noted earlier, there was an absence of specific details regarding the nature and extent of the Appellant’s previous correspondence with the Council and accordingly there was no evidence of any harassment or inappropriate language in any such correspondence.[99]The tables referred to in paragraph 57 included details of whether the Appellant’s ‘requests’ resulted in complaints to the Comm. They showed that, of the total ‘requests’ which the Council had logged under the ‘information acts’, only 2 complaints had been made to the Commissioner. In our view, that is inconsistent with the Council’s position that the Appellant wanted to cause it annoyance.[100]For all of those reasons, we find that there was no harassment or distress to the Officer, the Council or any other of its staff in respect of the Request. Summary / other points[101]For all of the reasons we have given, we find that the Request was not manifestly unreasonable (in all the circumstances of the case) and consequently that regulation 12(4)(b) is not engaged. Given that finding, it is not necessary for us to go on to address the Public Interest Test.[102]As we noted in paragraphs 77 and 91, whilst the Council responded to the Request following its internal review, an element of the Requested Information was not provided by it. Consequently we consider that it is appropriate for our Substituted Decision Notice to make provision for a fresh response to the Request, notwithstanding the Council’s response to the Request following its internal review.

Final conclusions

[103]For all of the reasons we have given, we find that the Commissioner was wrong to conclude that the Request was manifestly unreasonable. Therefore we find that the Commissioner erred in law in concluding, in the Decision Notice, that regulation 12(4)(b) was engaged in respect of the Request.[104]We therefore allow the appeal and make the Substituted Decision Notice above.