Trevor Smith v The Information Commissioner [2025] UKFTT 711 (GRC)

[2025] UKFTT 00711 (GRC)Case Reference: FT/EA/2024/0307
First-tier Tribunal
General Regulatory Chamber
Hearing Heard on: 17 February 2025Date 18 June 2025
Information Rights
Heard by Cloud Video Platform
Before
JUDGE STEPHEN ROPERMEMBER DAVID COOKMEMBER AIMÉE GASSTON
Between
TREVOR SMITHAppellantTHE INFORMATION COMMISSIONERRespondentDecision: the appeal is AllowedSubstituted Decision Notice:The Tribunal’s Decision Notice in case reference FT/EA/2024/0307, set out below, is substituted for Information Commissioner’s Decision Notice reference IC-290677-Y2L7, dated 1 August 2024, with regard to the request for information made to St Helens Metropolitan Borough Council by Trevor Smith dated 23 January 2024.Substituted Decision Notice
[1]St Helens Metropolitan Borough Council(the “Council”) must make a fresh response to the request for information made to it by Trevor Smith dated 23 January 2024.[2]Subject to paragraphs 3 and 4 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 is not obliged to respond in accordance with paragraph 2 above if and to the extent that the duty to confirm or deny does not arise in accordance with any applicable provision of the Regulations. However, if the duty to confirm or deny does not arise then the Council must cite the applicable exception and its reasons in its fresh response.[4]The Council may not rely on regulation 12(4)(b) of the Regulations in its fresh response.[5]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.[6]The Council must take the steps in accordance with paragraphs 1 and 2 above (and/or paragraph 3 above, if applicable) within 28 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.[7]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 St Helens Metropolitan 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: Dr. Trevor Smith. Commissioner: The Information Commissioner (the Respondent). Council: St Helens Metropolitan Borough Council. Decision Notice: The Decision Notice of the Commissioner dated 1 August 2024, reference IC-290677-Y2L7, relating to the Request. Dransfield: The decisions in the Dransfield case and the Dransfield Court of Appeal case. 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 27). EIRs: The Environmental Information Regulations 2004. FOIA: The Freedom of Information Act 2000. ICO: The Information Commissioner’s Office. Proposed Development: The proposed development of Bold Forest Garden Village which was referred to in the Request. Public Interest Test: The test, pursuant to pursuant to regulation 12(1)(b) (set out in paragraph 33), 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. Request: The request for information made to the Council by the Appellant, dated 23 January 2024, 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. The Decision Notice did not require the Council to take any steps.

Background to the appeal

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

The Request

[5]On 23 January 2024, the Appellant contacted the Council and requested information in the following terms: “This request for information relates to the issue of supply of electrical infrastructure to the [reference number redacted]/Bold Forest Garden Village site: 1. At what point in the development of the Local Plan was supply of electricity to the site [reference number redacted]/Bold Forest Garden Village site first considered? 2. How many points of entry are there, at the boundaries of the Bold Forest Garden Village site, for high voltage electrical supply to the site? Where are these points of entry located? 3. Has the possibility of using the land adjacent to the existing substation on Gorsey Lane for electrical infrastructure, been considered by the Council? If so, is it possible to obtain copies of documentation relating to the matter? 4. Has the owner of the land at the point of entry of electrical supply to the Gorsey Lane substation, [name redacted], been consulted on the matter of using his land for electrical infrastructure? Was the issue of electrical infrastructure a reason for including this site in the allocation? Is this documented and, if so, is it possible to obtain copies of the documentation? 5. Has the supply of electricity to the Bold Forest Garden Village, and its necessary infrastructure, been discussed with Taylor Wimpey, who owned the land immediately to the north of the substation on Gorsey Lane at the time of allocation of the site? Is it possible to obtain copies of the communications between the Council and Taylor Wimpey regarding supply of electrical infrastructure?”.[6]The Council responded on 18 February 2024. It stated that it considered that the Request was vexatious pursuant to section 14(1).[7]The Appellant contacted the Commissioner by letter dated 20 February 2024 to complain about the Council’s response to the Request. In essence, the Appellant disagreed that the Request was vexatious and he considered that he had a legitimate interest in seeking the Requested Information.[8]The Commissioner subsequently issued the Decision Notice.

The Decision Notice

[9]In the Decision Notice, the Commissioner concluded (in summary) that:a. the Requested Information fell within the scope of the definition of “environmental information” in regulation 2(1), as it related to the development of land for housing under a Local Plan and therefore comprised information on ‘measures’ affecting the elements of the environment for the purposes of that regulation;b. the Council should therefore have considered the Request under the EIRs rather than FOIA;c. having regard to the relevant principles in Dransfield (and taking a holistic view of the Request, its context and the history of the Appellant’s dealings with the Council regarding the land in question), the value and purpose of the Request did not justify the impact on the Council of complying with it;d. the Council was accordingly entitled to regard the Request as manifestly unreasonable under regulation 12(4)(b);e. having considered the arguments of both the Appellant and the Council regarding the Public Interest Test, the public interest in maintaining the exception outweighed the public interest in disclosure of the Requested Information.[10]The Commissioner also recorded in the Decision Notice that, as the Request had been refused on the grounds that it was vexatious, the Commissioner considered that it would be unreasonable to expect the Council to provide the Appellant with advice and assistance on remaking the Request pursuant to regulation 9(1).

The appeal

[11]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.[12]At the time of the Appellant’s complaint to the Commissioner relating to the Council’s refusal of the Request, only FOIA was referred to by the Council. However, as the Commissioner decided that the EIRs applied to the Requested Information, the Decision Notice was issued pursuant to the EIRs.[13]For the reasons we have given in paragraph 47, 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

[14]In his grounds of appeal and in submissions following the Commissioner’s response to the appeal, the Appellant did not dispute the application of the EIRs to the Requested Information.[15]In his submissions following the Commissioner’s response to the appeal (essentially, the Appellant’s reply to the Commissioner’s response), the Appellant stated that “the appeal should be considered within the scope of regulation 12(4)(b)…”. He went on to state that “the principal point of disagreement” was the balance of the Public Interest Test.[16]However, in those subsequent submissions, the Appellant also asked the Tribunal to consider the circumstances of the case in accordance with the “principles” from Dransfield. Likewise, his grounds of appeal also referred to the four issues or themes from Dransfield. The Appellant also made submissions during the hearing regarding those four issues or themes.[17]We therefore concluded that the Appellant sought to appeal the Decision Notice in respect of:a. the engagement of regulation 12(4)(b) (on the basis that it was clear that the Appellant did not consider the Request to be vexatious/manifestly unreasonable); andb. if regulation 12(4)(b) was engaged, the assessment and outcome of the Public Interest Test.

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 scope of the appeal

[19]We consider that it is important to stress what is outside of the scope of the appeal. The appeal was not about the lawfulness of land allocation in connection with the Proposed Development, the lawfulness of the Council’s activities in connection with the Proposed Development or regarding planning law generally. The appeal was also not about the merits or otherwise of the Local Plan or a Policies Map, 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 (in accordance with the remit and powers of the Tribunal referred to in paragraphs 20 and 21) and not for any other purposes.

The Tribunal’s powers and role

[20]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.”
[21]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

[22]The proceedings were held by the cloud video platform. The Tribunal Panel, the Appellant and the witness (see paragraph 25)joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. The Commissioner did not appear and was not represented.[23]There were some occasional minor interruptions during the hearing, including some instances of background noise and momentarily lost connections. However, these interruptions had no material adverse effect on proceedings and the Tribunal was satisfied that nothing had been missed during the hearing.

The evidence and submissions

[24]The Tribunal read and took account of an open bundle of evidence and pleadings.[25]The bundle included a witness statement from the Appellant, as well as a witness statement given by someone on behalf of the Appellant. The latter witness statement was given primarily in their capacity as the owner of land adjoining the site of the Proposed Development. It is not necessary for us to identify this witness personally in this decision - therefore we merely refer to them as “the witness” and we mean no disrespect to them in doing so.[26]All of the contents of the bundle, including all the submissions of the parties (as well as the Appellant’s submissions and the evidence of the Appellant and the witness 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

[27]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.”.[28]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…”.[29]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.[30]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…”.[31]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.[32]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

[33]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;”.[34]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.[35]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)

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

Regulation 4

[37]So far as is relevant for current purposes, regulation 4 provides: “(1) Subject to paragraph (3), a public authority shall in respect of environmental information that it holds—(a) progressively make the information available to the public by electronic means which are easily accessible; and(b) take reasonable steps to organize the information relevant to its functions with a view to the active and systematic dissemination to the public of the information. (3) Paragraph (1) shall not extend to making available or disseminating information which a public authority would be entitled to refuse to disclose under regulation 12.”.[38]Regulation 4(1) therefore places a duty on public authorities to progressively publish the environmental information which it holds, other than information which (if it were requested) the public authority would be entitled to withhold pursuant to any applicable exception in regulation 12.[39]The environmental information which is to be disseminated pursuant to regulation 4(1) is specified in regulation 4(4), as follows: “(4) The information under paragraph (1) shall include at least—(a) the information referred to in Article 7(2) of the Directive; and(b) facts and analyses of facts which the public authority considers relevant and important in framing major environmental policy proposals.”.[40]The ‘Directive’ referred to is the European Directive 2003/4/EC, which was implemented by the EIRs. The information referred to in Article 7(2) of that Directive (and hence the information which must be disseminated pursuant to regulation 4(1)) includes policies, plans and procedures relating to the environment, reports on the state of the environment, environmental impact studies and data taken from monitoring activities and risk assessments which affect or are likely to affect the environment.

Relevant case law

[41]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.[42]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).[43]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.”.[44]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 Preliminary observations

Discussion and findings

[45]We start by noting that, in various instances, the Decision Notice merely recorded the Council’s position on matters and did not set out the Commissioner’s views on those matters. It was evident, however (and we therefore find) that where the Commissioner did not set out his own view, he accepted the Council’s position and accordingly took it into account in reaching his conclusions in the Decision Notice. Our references below to any conclusions reached by the Commissioner in the Decision Notice are to be construed accordingly.

Application of the EIRs

[46]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 initially refused to supply the Requested Information on the basis that the Request was vexatious under section 14. Therefore the Council treated the Request as falling within the scope of FOIA, rather than within the scope of the EIRs. As noted, though, the Commissioner decided that the EIRs applied and the Decision Notice was issued on that basis.[47]We find that the EIRs do apply to the Request. The Requested Information fundamentally relates to the development of land (the Proposed Development) and associated matters. It is clear that plans and policies for the use and development of land relate to information ‘on’ the environment for the purposes of the definition of ‘environmental information’ in regulation 2(1).[48]At face value, some distinct elements of the Requested Information, such as the requests for information regarding consultation/discussion with third parties, 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 Proposed Development 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.[49]For convenience, we use the term “information” below to refer (where the context permits) to environmental information within the scope of the EIRs.

Dissemination of information

[50]As part of our assessment of all of the circumstances applicable to the Request for the purposes of regulation 12(4)(b), we have come to the conclusion that (on the balance of probabilities) the Council has not published some aspects of the Requested Information as required under regulation 4(1), given the applicable scope of the information which is required to be disseminated as noted in paragraph 40. We have reached this conclusion because:a. the Appellant and the witness gave evidence to the effect that certain of the Requested Information has not been published by the Council, particularly with regard to the electrical infrastructure for the Proposed Development which was the subject of the Request;b. that evidence was also supported by other evidence in the bundle (within the Planning Inspector’s decision regarding an appeal relating to a refusal of planning permission for land adjoining the site of the Proposed Development);c. there was no material rebutting evidence in the bundle; andd. as we have noted, the Council did not consider (in dealing with the Request) that the Requested Information was ‘environmental information’ pursuant to the EIRs. Consequently, if the Council did not recognise the application of the EIRs to the Requested Information, it is likely that the Council would not have been publishing relevant information as required pursuant to regulation 4(1). Moreover, as stated, the lack of published information relevant to the Request is also consistent with the other evidence before us.[51]In coming to the above conclusion, we recognise that the Council would not be under a duty to publish information pursuant to regulation 4(1) if it would be entitled to withhold such information pursuant to any applicable exception in regulation 12 (which, for current purposes, would be the ‘manifestly unreasonable’ exception under regulation 12(4)(b)). For the reasons we will come to, we find that that exception does not apply. Accordingly, the Council’s duty to publish the relevant information under regulation 4(1) would therefore have been unaffected by regulation 12(4)(b) insofar as the majority of the Requested Information is concerned.[52]A further relevant factor is that the Proposed Development is a major development. The Appellant gave evidence to the effect that it relates to the potential construction of approximately 3,000 new homes being built on a 128-hectare site (which we consider to be tantamount to building an entire village). Given the nature and extent of such a development and its potential environmental impact, we consider that it was incumbent on the Council to publish information relating to it pursuant to regulation 4(1), including with regard to how power is proposed to be supplied to it (bearing in mind potential developmental considerations for the power supply such as those referred to in paragraph 82).[53]We should make it clear that the above conclusion is relevant only as a finding of fact as part of our consideration of all of the circumstances, specifically for the purposes of the remit of the Tribunal in the context of the appeal. This is not a decision purporting to determine that regulation 4(1) was breached by the Council for any other purpose, as that is not within the jurisdiction of the Tribunal in respect of the appeal. Rather, we are taking into account our conclusion that at least some relevant information was not published under regulation 4(1) as a relevant factor in our assessment as to whether or not the Request was manifestly unreasonable in all of the circumstances.

Whether the Request was manifestly unreasonable

[54]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 a useful starting point for our consideration of this issue.[55]We recognise that those issues or themes 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 (bearing in mind also that they were addressed in the Decision Notice). 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[56]In considering the question of the burden placed on the Council by the Request, we recognise that the Request was part of a wider series of requests for information and correspondence between the Appellant and the Council. However, there were no details in the bundle regarding the nature and extent of those previous interactions, save for a page which was attached to a draft letter dated 11 June 2024, sent to the Commissioner on 14 June 2024 in connection with the Commissioner’s investigation, which the Council proposed to send to the Appellant. That page contained a log (by way of ‘line items’ only) of what the Council had described as the Appellant’s “high volume of information requests, subject requests, complaints, and correspondence” to the Council, which the Council stated (as reflected in the Decision Notice) numbered “over 30” in total. The actual number of line items in that log was 31.[57]The Appellant gave evidence during the hearing that he had requested meetings with the Council in order to discuss relevant issues, but those requests had been ignored. This was in contrast to paragraph 27 of the Decision Notice where the Commissioner recorded that the Council had said that it had attempted to resolve matters with both the witness and the Appellant “a number of times” (which was disputed by the Appellant and the witness). The Appellant also stated that a statement in the above draft letter that the Appellant had been approached “to discuss resolution and outcomes without success” was factually incorrect. The Appellant stated that the Council had met with the witness on two occasions (but not the Appellant) and the witness had been specifically told by the Council that the Appellant could not accompany him to those meetings.[58]The Appellant stated that, as his requests for meetings had been ignored (and he was unable to attend meetings with the witness), he consequently had to make written requests for information instead. The Appellant explained that he had some familiarity with the process for making freedom of information requests and he considered that requests needed to be very specific (having regard also to guidance issued on the Council’s website regarding information requests being framed by way of ‘closed questions’). He stated that that was why he had to make various requests.[59]The Appellant also stated that, out of seventeen requests for information which he made to the Council, nine were answered within the statutory period but eight were not - and consequently resulted in the Appellant sending reminders or requests for an internal review. The Appellant stated that some requests went unanswered for around six months and some others took a “few months” to be dealt with. He stated that he had sent fourteen ‘reminders’ in total and therefore he considered that the Council was adding to its own burden by not dealing with the requests as it was legally obliged to.[60]With regard to the ‘correspondence log’ we referred to in paragraph 56, the Appellant referred to guidance published by the Commissioner for public authorities regarding vexatious requests (extracts of which were included in the bundle), The extracts were taken from guidance on the following page of the ICO’s website: https://ico.org.uk/for-organisations/foi/freedom-of-information-and-environmental-information-regulations/section-14-dealing-with-vexatious-requests/what-will-the-ico-expect-from-an-authority/ which states: “Where you believe that the context or history strengthens the argument that the request is vexatious, then we also expect you to provide any relevant documentary evidence or background information to support this claim. You need to make sure that the evidence provides sufficient detail to contextualise the history of the request. For example, it is not sufficient to simply count the number of associated pieces of correspondence and complaints made by the requester. This does not, in itself, reveal the nature of those interactions, or whether the issues raised were adequately dealt with by your organisation. Similarly, if a requester has made multiple requests, it is conceivable that the requester found it necessary to do so because you had failed to respond properly, or at all, to some of those requests.”.[61]The Appellant’s position was, having regard to that guidance, that the Council had not provided sufficient evidence regarding the context or history of its dealings with the Appellant to support the argument that the Request was vexatious. We agree with the Appellant’s position on this; in our view the ‘correspondence log’ fell squarely into the example given in the above guidance, which is worth repeating:
“…it is not sufficient to simply count the number of associated pieces of correspondence and complaints made by the requester. This does not, in itself, reveal the nature of those interactions, or whether the issues raised were adequately dealt with by your organisation”
. This is because, in our view, the ‘correspondence log’ merely itemised (without adequate detail) the correspondence and it included matters which we do not consider should fairly have been included to reflect the nature of the Appellant’s interactions with the Council in support of the view that the Request was vexatious/manifestly unreasonable. For example, it included items where (based on the log summary) the Appellant simply requested a copy of the Council’s complaints policy, provided the Council with a copy of a decision from the Commissioner or requested an internal review, and it included a subject access request. Such correspondence should not, in our view, be taken into account to support an argument that the Request was vexatious/manifestly unreasonable.[62]Moreover, there was insufficient further evidence from the Council, beyond the ‘correspondence log’ and its representations, to contextualise the Council’s previous dealings with the Appellant or to support its assertions regarding the nature of those dealings and its view that the Request was vexatious/manifestly unreasonable.[63]The Appellant’s position was also (again, having regard to that guidance) that he had indeed found it necessary to make contact with the Council to the extent he had because the Council had failed to respond properly to previous requests for information (and for the reasons we have referred to about the framing of requests and its refusal to meet with the Appellant).[64]Paragraph 22 of the Decision Notice recorded the Council’s view that dealing with the Appellant’s correspondence was burdensome because: “There is 1 officer who is dedicated to the processing of FOIs. This officer is responsible for co-ordination of responses, formulating responses in some cases and co-ordinating internal reviews. The council relies on staff from wider services to supply relevant information. These staff have existing roles and duties and are not dedicated to FOIs. In this case, a significant amount of resource from the FOI officer and from the wider services – the Planning Department are being used to respond to the requests. The Planning Department must divert staff away from usual planning business resulting in delays and impacting on the ability of the service to perform effectively.”.[65]The Appellant also argued in his grounds of appeal that the Commissioner’s acceptance of the above statement from the Council contradicted other guidance of the Commissioner for public authorities, Again, extracts were included in the bundle. The extracts were taken from guidance on the following page of the ICO’s website: https://ico.org.uk/for-organisations/foi/freedom-of-information-and-environmental-information-regulations/section-14-dealing-with-vexatious-requests/how-do-we-consider-burden-motive-and-harassment/ which stated: “When considering the amount of work that would be involved in dealing with a request and whether it would impose an unreasonable burden, you need to take account of the level of resources that your organisation has at its disposal. For example, a small public authority, such as parish council, only has very limited resources because a parish clerk may be employed for just a few hours a week. Therefore, the threshold at which the burden becomes grossly oppressive is lower than for a larger public authority. If you are a larger public authority, it is not sufficient to argue that a request is burdensome because you have only allocated a small number of officers to handle requests.”.[66]The Appellant gave evidence in the hearing that the Council was sizeable (with reference to its latest annual report), including stating that the Council had call centres which dealt with around 100,000 enquiries per year. The Appellant considered that the Council had ample resources. His grounds of appeal asserted thatthe Council is a large public authority with 18 Wards and 48 Councillors, with separate departments across functions including Legal, Communications, Information Governance, Compliance and Complaints, and Policy Change and Reform.[67]There was little evidence before us, beyond the matters we have referred to, regarding the Council’s size, resources or workload, or the impact of the Request (or other requests from the Appellant) on the Council. However, we find that the Council is a reasonably sizable public authority. We also consider that the Council’s arguments (cited in paragraph 64) should carry little weight. We agree with the Appellant that (having regard also to the Commissioner’s view in his own guidance) that it is not sufficient for the Council to argue that the Request (even taken with other requests) is burdensome because the Council only has one dedicated officer to handle requests.[68]Further, the point made by the Council that it relies on staff from wider services to supply relevant information is not a particular situation which is unique to the Council; we consider that that is how most (if not all) public authorities have to deal with requests, unless the totality of the relevant information is immediately accessible to the person dealing with a request. Indeed, when a request is made for information held or controlled by another department (in this case, the Planning Department), it is evident that the handling of a request will necessitate the involvement of the department in question. Consequently, this is another reason why we consider that little weight should be attached to the Council’s arguments regarding the burden on it, including with regard to the impact on the functioning of other departments.[69]We recognise the point made by the Upper Tribunal in the Dransfield case [paragraph 10] that the purpose of section 14 (and consequently regulation 12(4)(b)) was “to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA”. However, the Court of Appeal’s qualification to that (in the Dransfield Court of Appeal case) is important – namely that such aim is one only to be realised if the standard set by vexatiousness (or, for current purposes, ‘manifestly unreasonable’) is satisfied, which the Court of Appeal also stated was a ‘high hurdle’.[70]In our view, a material factor in assessing whether or not a public authority’s resources are being squandered or abused by requests for information is whether the public authority was under a separate duty to publish that information and, if so, whether it had indeed done so. It cannot be right that the Council, having not disseminated relevant information in accordance with its duty under regulation 4(1), should then be able to refuse to provide it when it is separately requested.[71]In the Decision Notice, the Commissioner relied on the submissions of the Council regarding the burden of the Request and other correspondence from the Appellant. However, as we have noted there was little evidence in support of that position, particularly regarding the nature and the context of that correspondence. We also accept the Appellant’s evidence regarding the reasons why he had to correspond as he did with the Council (namely, avoiding asking for too much in a single request and needing to follow-up on lack of responses from previous requests).[72]The Decision Notice did not address the question of whether the Council had previously failed to comply with its statutory duties for responding to information requests. It also did not take into account the Council’s duties to publish a significant part of the Requested Information under regulation 4(1). However, in our view these are material issues relevant to the overall circumstances and which should therefore have been taken into account in assessing, on a holistic basis, whether the Request was manifestly unreasonable.[73]A further factor which we consider is relevant to the issue of ‘burden’ is the nature and extent of the Proposed Development. In our view, any public authority which seeks to bring about a potential extensive development of land such as that should anticipate and be prepared to manage the additional work arising from it regarding requests for information. We also consider that in such circumstances the public authority should, in any event, accept the associated responsibilities for publication of relevant information pursuant to regulation 4(1). Given the nature and extent of the Proposed Development, it is unsurprising, if not inevitable, that this would generate a number of requests for information relating to it, particularly if the Council is not publishing information as it should be. In that context, it is understandable that the Request (and other requests) have been made as a result (at least in part) of the lack of published information. It follows that it must be inequitable to then treat the Request (taking into account other requests) as being a disproportionate, manifestly unjustified, inappropriate or improper use of the EIRs.[74]Consequently, to the extent that there is a burden on the Council in complying with the Request, that burden (in respect of a significant part of the Requested Information) is either a burden which already existed as statutory duties pursuant to regulation 4(1) or is a burden created, or at least exacerbated, by the Council’s own making - namely, a failure to discharge those statutory duties (to some degree, at least).[75]We accept that other requests and correspondence can be relevant considerations regarding the burden placed on the Council, as well as the fact that the burden of the Request is not a single determinative factor in assessing the question of whether it was manifestly unreasonable. We took account of the nature of the Request, taken together with other requests for information made by the Appellant, but we also consider that the need for the Request and other previous requests have (to some extent) been created or exacerbated by the Council’s own inactions (including its failure to respond to previous requests within the statutory period).[76]For all of the above reasons, we feel that the issue of the burden placed on the Council by the Request is not a material factor in respect of the question of whether the Request was manifestly unreasonable. Motive[77]We are mindful that consideration of the motive of the requester could be a significant factor in assessing whether a request is manifestly unreasonable in all of the circumstances, particularly having regard to the point made in the Dransfield case [paragraph 35] that section 14 (and consequently regulation 12(4)(b) for current purposes): “serves the legitimate public interest in public authorities not being exposed to irresponsible use of FOIA, especially by repeat requesters whose inquiries may represent an undue and disproportionate burden on scarce public resources.”.[78]The Council’s position was that the Request relates to the inclusion of a particular piece of land within the Local Plan (which is Council’s strategic planning document which sets out things such as site allocations for new housing). The Decision Notice recorded the Council’s view the Request was “the latest in a long line of correspondence, enquiries and complaints” in pursuit of the Appellant’s aim to have the land removed from the Local Plan, to speed up the process of potentially building on that land. The Decision Notice also recorded the Council’s statement to the Commissioner during his investigation that “The information he seeks via FOI seeks to identify decisions/errors made by the council in the allocation of the land within the Local Plan.”.[79]The Appellant’s stated, in his grounds of appeal and during the hearing, that the reason for the Request stemmed from a statement made by the Council to the effect that the relevant land may be required for critical electrical infrastructure to supply power to the Proposed Development. He pointed us to the supporting evidence in this regard (within the Planning Inspector’s decision regarding an appeal relating to a refusal of planning permission for land adjoining the site of the Proposed Development). The Appellant stated that he was not previously aware of that potential requirement. As we have already noted, we find that information relating to this was otherwise not publicly available and we accept the Appellant’s evidence that this is what therefore prompted the Request.[80]Some of the issues relating to the value or serious purpose of the Request are relevant to the consideration of the Appellant’s motive and we address those below. However, 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. In part, this is because we find that the main motivation behind the Request was to access information which the public generally would normally be entitled to pursuant to the Council’s duties to disseminate information pursuant to regulation 4(1) and which was not otherwise available. Value or serious purpose[81]The Commissioner’s view, in paragraph 19 of the Decision Notice, was that the Appellant was clearly “pursuing an entirely private interest” in making the Request. The Appellant accepted that he had a personal interest in making the Request, but he denied that it was an entirely private one. The Appellant argued, in his grounds of appeal and during the hearing, that there is considerable wider public interest in the supply of power to the Proposed Development, given its proposed size of almost 3,000 dwellings. The Appellant’s view was that this would be of interest to:a. prospective purchasers of the new dwellings;b. owners of land comprising the site of the Proposed Development;c. occupiers of properties around the periphery of the Proposed Development (as the plans for the supply of power may affect their properties); andd. the developers who will eventually build on the Proposed Development.[82]During the hearing, the Appellant expanded on those arguments. In particular, he referred to the possibility that the proposed electrical supply to the Proposed Development may involve the building of substations or electricity pylons or the installation of underground cabling. He considered that these were environmental matters attracting much wider public interest. He also stated that there was an action group which was opposed to the building of the Proposed Development on green belt, which consisted of around 1,500 members, and consequently the Appellant considered that they would also have an interest in matters relating to the proposed electrical supply for the Proposed Development.[83]The Decision Notice had also referred to the Request as being ‘speculative’, which the Appellant denied. We accept the Appellant’s evidence that (as noted above) the Request was made in response to a statement made by the Council regarding relevant land potentially being required for critical electrical infrastructure relating to the Proposed Development, seeking information which was not otherwise publicly available in connection with that.[84]Whilst the Commissioner’s view in the Decision Notice was that the Appellant was pursuing an entirely private interest in making the Request, he also recognised that there is a presumption in the EIRs that openness is, in itself, to be regarded as something which is in the public interest. The Commissioner accordingly noted that the Request had some value with regard to the public interest in transparency.[85]Notwithstanding that, the Commissioner did not, in our view, fully consider the potential wider public interest in the Requested Information. In particular, he did not reflect in the Decision Notice the Council’s own stated recognition, during his investigation (with regard to the Public Interest Test), that there is “wider public interest in relation to the Local Plan and associated developments”, other than noting the public interest in ‘transparency’.[86]We find that (given the nature and extent of the Proposed Development) there would be wider public interest in aspects of the Requested Information, for largely the same reasons given by the Appellant (and taking into account also the Council’s own views about the wider public interest, albeit expressed in the context of the Public Interest Test). We also reiterate that the relevant information was not available in the public domain despite the Council’s duties under regulation 4(1), which we consider to also be a relevant factor counting towards there being a value and serious purpose in the Request. On a related note, we would observe that the Decision Notice referred to there being a substantial amount of information in the public domain regarding the Proposed Development. Whilst we don’t disagree with that assessment, we find that the information in the public domain was not information within the scope of the Request.[87]In assessing, in the Decision Notice, whether the value and purpose of the Request justified its impact, the Commissioner stated that he “considers that compliance with the request would not resolve the complainant’s concerns”. The Appellant’s position was that that comment was highly speculative, completely unsubstantiated and unjustifiable. The Appellant explained that responses to previous requests for information had proved useful but he considered that he would not need to make any future requests, as (subject to receiving the Requested Information) he would have all the information he needed relating to his concerns regarding the relevant land and the Proposed Development.[88]The Appellant’s grounds of appeal stated that he had made no new requests for information in the last six months. He stated in the hearing that he had last made contact with the Council in March 2024 (therefore 11 months by the time of the hearing), which was consistent with the evidence (namely the ‘correspondence log’ referred to in paragraph 56). The Appellant explained during the hearing that the lack of requests in that period was not consistent with the view of the Commissioner in the Decision Notice that more requests would be likely to follow after the Request. The Appellant reiterated during the hearing that he considered that the Request was likely to be the last he would make on the subject matter. We found the Appellant’s evidence and arguments to be credible and compelling and we agree that the Commissioner had no sound basis on which to form his view that compliance with the Request would not resolve the Appellant’s concerns and would be likely to result in further requests.[89]For all of the above reasons (and linked to our findings on the issue of ‘motive’), we are also satisfied that there was a broader and important public interest in seeking the Requested Information.[90]We also acknowledge that a compelling public interest in the disclosure of information held by a public authority does not necessarily prevail over the issue of the burden involved in complying with a request for the disclosure of that information. In other words, even if there is considerable public interest in the information which is the subject of a request, that does not (of itself) take precedence over, or override, any consideration that there is a such a burden placed on a public authority by the request that it might be manifestly unreasonable wholly or partly because of that burden. However, in the context of the appeal and in our assessment of the wider circumstances, we find that, as noted in paragraph 74, any burden on the Council was existent largely because of factors other than the Request and other correspondence from the Appellant and accordingly the Request was not manifestly unreasonable due to any perceived burden that it placed on the Council. Harassment or distress[91]The Decision Notice stated that the Council had acknowledged that the Appellant had not been abusive towards its staff. However, the Decision Notice reflected the Council’s position that some staff had reported feeling stressed, anxious and overwhelmed by the repetitive and persistent nature of the Appellant’s requests and correspondence.[92]Paragraph 33 of the Decision Notice recorded the Commissioner’s view that “A request which isthe latest in a series demonstrating persistent or entrenched behaviour can have the effect of harassing staff due to the collective burden they place on those staff.”. We accept that, in principle - but the relevant consideration for current purposes is whether there actually was such an effect.[93]There was no evidence of distress to staff, beyond the Council’s assertion of it. The Appellant argued, in the hearing, that the Council’s reference to “some staff” appeared to be inconsistent with its position that there was only one staff member who is dedicated to the processing of information requests. He queried how many staff members were allegedly affected and why, if there was only one person handling requests. We agree that, at face value, this would appear to be contradictory to the Council’s statement about the involvement of staff which we cited at paragraph 64. However, we also accept the possibility that other staff could have been affected, given that they would need to be involved in gathering information in response to requests, as we have noted. The issue, though, was that there was no further evidence in support of the Council’s assertion.[94]Further, as we have mentioned in respect of the issue of ‘burden’, almost half of the 31 items in the ‘correspondence log’ (14 items) represented contact made by the Appellant with the Council when it had not responded to information requests within the statutory timeframes. Consequently, in the same vein as we found that the Council was adding to its own burden, we consider that any alleged distress felt by staff was, in part, caused by its own failure to deal appropriately with information requests.[95]We also find that the Commissioner erred by taking into account the totality of the Appellant’s correspondence with the Council without properly considering the reasons for the correspondence, for the reasons we have referred to. Likewise, as we noted in paragraph 61, the ‘correspondence log’ included matters such as a request for a copy of the Council’s complaints policy, a request for an internal review and a subject access request, which we consider should not have been taken into account for the purposes of arguing that the Request was manifestly unreasonable.[96]For all of those reasons, including the fact (accepted by the Council) that the Appellant had not been abusive or rude towards its staff in his correspondence, we find that the Commissioner was wrong to conclude that there was harassment or distress to the Council’s staff as part of his assessment that the Request was manifestly unreasonable. Summary[97]For all of the reasons we have given, in our view the Request was not manifestly unreasonable and consequently that regulation 12(4)(b) of the EIRs was not engaged. Given that finding, it is not necessary for us to go on to address the Public Interest Test.

Final conclusions

[98]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) of the EIRs was engaged.[99]We therefore allow the appeal and make the Substituted Decision Notice above.

Cited in 1 later judgment