Julia Thomson v The Information Commissioner [2025] UKFTT 721 (GRC)

[2025] UKFTT 00721 (GRC)Case Reference: FT.EA.2024.0286
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 15 May 2025Date 19 June 2025
Information Rights
Heard: on the papers
Before
TRIBUNAL JUDGE FOSSTRIBUNAL MEMBER YATESTRIBUNAL MEMBER DR MANN
Between
JULIA THOMSONAppellantTHE INFORMATION COMMISSIONERRespondentUnrepresented for AppellantUnrepresented for RespondentDecision: The Appeal is Allowed.Substituted Decision Notice: Thorne Moorends Town Council was not entitled to refuse Ms Thomson’s request for information dated 16 October 2023 on the grounds that it was vexatious under s14(1) of the Freedom of Information Act 2000.To ensure compliance with the Environmental Information Regulations 2004, within 35 days of the date of this Decision Notice, Thorne Moorends Town Council must issue a fresh response to Ms Thomson’s request of 16 October 2023 which does not rely on Regulation 12(4)(b) of the Environmental Information Regulations 2004.REASONS
[1]This is an appeal against Decision Notice referenced IC-281260-F7WO dated 15 May 2024. By the Decision Notice, the Respondent (“the Commissioner”) decided that Thorne Moorends Town Council (“the Council”) was entitled to rely on s12(4)(b) (manifestly unreasonable) of the Environmental Information Regulations 2004 (“EIR”) to refuse the Appellant's request for information.[2]All parties consented to this matter being dealt with on the papers and the Tribunal was satisfied that it was fair and in the interests of justice to do so.[3]The Tribunal has taken into account all the evidence and submissions before it. This consisted of a bundle of 190 pages. Our findings are made on the balance of probabilities.

The Request

[4]On 16 October 2023, the Appellant asked the Council for: “the statement named as Appendix 1 that is attached to the Thorne and Moorends Neighbourhood Plan Basic Conditions Statement dated 29th March 2017" (“the Request”). The Request was expressed to be made pursuant to the Freedom of Information Act 2000 (“FOIA”). The Request was one of multiple requests made by the Appellant in in 2023 of the Council for information relating to the Council’s Neighbourhood Plan.[5]On 20 October 2023, the Council responded, providing a document called “Thorne and Moorends Neighbourhood Plan: Basic Conditions Statement” dated 29 March 2017.[6]On the same day, the Appellant responded to the Council, noting that the Request was, in fact, for Appendix 1 to the Basic Conditions Statement. The Appellant repeated the Request.[7]On 14 November 2023, not having received a response from the Council, the Appellant chased for a response and sought an internal review of the Council’s handling of the Request.[8]On 20 November 2023, the Council wrote to the Appellant indicating that her various FOIA requests relating to the Neighbourhood Plan had been deemed vexatious and repetitive by the Town Council, and that the information requested was consequently exempt from disclosure pursuant to s14 FOIA.[9]The Appellant complained to the Commissioner. The substance of her complaint related to the Council’s handling of the Request, although the Appellant expressed dissatisfaction about the Council’s responses to other requests made by the Appellant, including two requests of 11 October 2023. The Commissioner investigated.

The Decision Notice

[10]By the Decision Notice, the Commissioner identified the Request as the subject of his decision, that is to say, the Request of 16 October 2023. He decided that the information relating to the Council’s Neighbourhood Plan was environmental information within the meaning of EIR, namely information on measures and/or activities which are likely to affect the elements and factors of the environment, and that they therefore fell to be dealt with under EIR.[11]We note here that in places in the Decision Notice the Commissioner appeared to be focusing on the Request, and in other places on the Appellant’s other requests, without distinguishing between them.[12]The Commissioner said that he was aware that the Council had responded to numerous requests regarding the Neighbourhood Plan from the Appellant over a number of years but had only recently determined them to be manifestly unreasonable. The Commissioner was satisfied that responding to the requests (which he described in the plural, but which included the Request) would create an unreasonable burden on the Council and were thus manifestly unreasonable. The Commissioner noted the Council’s confirmation that it considered that compiling further responses to the Appellant’s requests would be a significant diversion of resources which would not be in the public interest as it may disrupt other decision-making or other workloads; it was not in the public interest to divert officers’ attention from their core work to respond to a request made by an individual which may have limited wider public interest.[13]The Commissioner accepted that there was a general public interest in the issues and that local residents would have their own interest in knowing how the Council was carrying out its duties and using its resources to the greatest effect for the community as a whole. He was not, however, convinced that providing further information would substantially add to any public interest beyond that of the Appellant and local residents. He concluded, therefore, that, taking into consideration the significant burden on the Council of providing further responses, the public interest in the maintenance of the exemption from disclosure outweighed the public interest in disclosure.

The Appeal

[14]By her Notice of Appeal dated 12 June 2024, the Appellant submits, in summary that:a. The requested information is, as yet, unpublished.b. The Council is the largest Town Council in the City of Doncaster and, as such, is adequately staffed and well able to respond to FOIA requests relating to its Neighbourhood Plan.c. The Council covers an area home to 18,500 residents which makes the Neighbourhood Plan a highly significant and powerful planning document.d. The Council has secured over £39,000 of public funds between 2013 – 2018 to pay for work on its Neighbourhood Plan, and is likely to obtain a further £40,000 to complete the Neighbourhood Plan to include the allocation of housing sites in a flood zone.e. Whether the Council can be trusted with further public funds when it has, according to the Appellant, falsified the Neighbourhood Plan, is a matter of public interest.f. FOIA requests for unpublished information relating to the Neighbourhood Plan should be welcomed by the Council and be recognised as legitimate requests.[15]The Appellant requires that the Council be held to account. The Council’s prevention of the Appellant using FOIA to request unpublished information relating to the Neighbourhood Plan is an injustice.[16]In addition to the Notice of Appeal, the Appellant has supplied the Tribunal with a letter dated 6 June 2024, in which she makes a number of complaints as to the way the Council has handled matters relating to the Neighbourhood Plan, including allegations that the Council had falsified documents relating to it. We understand from this letter that the subject of the Appeal is the Council’s handling of the Request, rather than the Council’s handling of the Appellant’s other requests.[17]By Reply dated 12 November 2024, the Commissioner submits, in summary, that he stands by the Decision Notice; the Council is entitled to rely on Regulation 12(4)(b) EIR to refuse “the request” (in the singular, which we take to mean the Request”), and the public interest favours maintaining that exception from disclosure, even taking into account the presumption in favour of disclosure afforded by Regulation 12(2) EIR.

Legal Framework

[18]The Request was made, and responded to, pursuant to FOIA. The Commissioner decided that the Request was for environmental information, and should, therefore, have been dealt with pursuant to EIR. We agree.[19]EIR define environmental information thus:
“environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on— (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; (d) reports on the implementation of environmental legislation; (e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and (f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);”
[20]Given the subject matter of the Request, we are satisfied that it is environmental information, which falls to be dealt with under EIR, not FOIA:
“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.”
[21]Regulation 5 EIR provides relevantly as follows:
“Duty to make available environmental information on request 5.— (1) 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, a public authority that holds environmental information shall make it available on request. (2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request. ...” (2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request. ...”
[22]Regulation 12 EIR provides relevantly as follows:
“Exceptions to the duty to disclose environmental information 12.— (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if— (a) an exception to disclosure applies under paragraphs (4) or (5); and (b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. (2) A public authority shall apply a presumption in favour of disclosure. ... (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; ...” 12.— (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if— (a) an exception to disclosure applies under paragraphs (4) or (5); and (b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. (2) A public authority shall apply a presumption in favour of disclosure. ... (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; ...”
Analysis The subject matter of the Request

Analysis

[23]It is important to start by identifying the subject matter of the Request.[24]The Appellant requested Appendix 1 to the Basic Conditions Statement dated 29 March 2017.

The Basic Conditions Statement

[25]The Basic Conditions Statement accompanied the Council’s submission to Doncaster Metropolitan Borough Council (“Doncaster MBC”) of the Council’s Neighbourhood Development Plan, pursuant to Regulation 15 of the Neighbourhood Planning (General) Regulations 2012. Doncaster MBC is the Council’s local planning authority.[26]It appears from the material before us that the Appellant first sought Appendix 1 from Doncaster MBC but was informed by Doncaster MBC that they did not hold it. Doncaster MBC referred the Appellant to the Council.[27]The Basic Conditions Statement is expressed to address four basic conditions required by those Regulations as follows:a. Having regard to national policies and advice contained in guidance issued by the Secretary of State, whether it is appropriate to make the Neighbourhood Plan.b. Whether the making of the Neighbourhood Plan contributes to the achievement of sustainable development.c. Whether the making of the Neighbourhood Plan is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area).d. Whether the making of the Neighbourhood Plan does not breach, and is otherwise compatible with, EU obligations.[28]Under a section headed “Compatibility with EU obligations and legislation”, paragraph 6.1 of the Basic Conditions Statement states:
“The Neighbourhood Plan has regard to the fundamental rights and freedoms guaranteed under the European Convention on Human Rights and complies with the Human Rights Act.”
[29]Paragraph 6.2 of the Basic Conditions Statement refers to Appendix 1. It says:
“A screening opinion was issued by Doncaster MBC on date (attached as appendix 1 to this statement) which advised that the Neighbourhood Plan “is unlikely to have any significant environmental effects. Therefore Strategic Environmental Assessment, of the Parish/Town Name Neighbourhood Development Plan, is not required.”
It is evident from the words quoted that the drafting has yet to be completed to include the date of the screening opinion and the name of the Council.[30]Paragraph 6.3 of the Basic Conditions Statement says this:
“The Neighbourhood Area is not in close proximity to any European designated nature sites so does not require an appropriate assessment under the EU Habitats Regulations.”
The Council’s Guidance on Assessment[31]There is before us a document which we understand to have been provided by the Appellant to the Commissioner in his investigations. It is called “Economic, Social and Environmental Assessment of Neighbourhood Plans”, and headed “SB 09/08/13”, which we take to indicate the date the document was issued. It appears to have been issued by the Council as guidance on the subject matter of its heading. For ease, we shall refer to it as “the Council’s Guidance on Assessment”.[32]The Council’s Guidance on Assessment provides as follows:
“1 Introduction 1.1 The Localism Act 2011 requires neighbourhood plans to not breach, and be otherwise compatible with, EU and Human Rights obligations. 1.2 This note explains the assessments which are advised and/or required to be undertaken in relation to Neighbourhood Plans, and is in part adapted from advice on PAS website 08/08/13. This document does not constitute formal council policy. 1.3 In carrying any assessment work, it is advisable to first consider what assessment work has been carried out for the Local Authority’s plans (i.e. Doncaster’s Local Development Framework or LDF). All neighbourhood plans must be in conformity with the strategic policies of the Local Plan (i.e. the LDF Core Strategy), and the starting point should therefore be to review in the Equalities Impact Assessment, Sustainability Appraisal (including Strategic Environmental Assessment) and Habitats Regulation Assessment documents produced to inform the Core Strategy. Where a Neighbourhood Plan builds on the approach of the emerging Sites and Policies Development Plan Document, the relevant reports produced to inform that document may also be relevant. 1.4 The Council is happy to provide further advice on all forms of assessment referred to in this note. ...”
[33]The Council's Guidance on Assessment explains that:
“3.4 The competent authority under the Conservation of Habitats and Species Regulations 2010, needs to ensure that Neighbourhood Plans have been assessed through the Habitat Regulations process. This looks at the potential for significant impacts on nature conservation sites that are of European importance, also referred to as Natura 2000. 3.5 There are two such sites within Doncaster – Thorne and Hatfield Moors (although there are also sites in neighbouring authorities). Because Neighbourhood Plans must conform to the LDF Core Strategy, which has itself been subject to a Habitat Regulation Assessment (HRA), the key issue will be whether the Neighbourhood Plan will potentially: • result an impact to the moors not previously considered; • result in an increase in the likelihood or severity of an impact already assessed; • undermine the avoidance/mitigation measures contained within the Core Strategy to address potential impacts; and/or • enable the more detailed assessment of a potential impact which could not be fully assessed and screened out at the Core Strategy level (these are identified within the Core Strategy HRA). There are the ‘in-combination’ impacts that have to be considered where a plan is in combination with another plan or project (LDF Core Strategy) therefore Neighbourhood Plans may need to be considered through an 'in-combination' assessment. 3.6 In practice, this means that unless a Neighbourhood Plan includes land allocations close to the Moors, it is unlikely to require an HRA. It is useful to note that Core Strategy Policy CS 16C states that, “Proposals located within 3km of Thorne and Hatfield Moors Special Protection Area will be supported where they deliver a net gain in nightjar foraging habitat”
. As a strategic policy within the Local Authority’s plan, this policy would need to be complied with by relevant Neighbourhood Plans. Nevertheless, it is advisable to seek advice from the Local Authority in relation to this early in the process.” 3.5 There are two such sites within Doncaster – Thorne and Hatfield Moors (although there are also sites in neighbouring authorities). Because Neighbourhood Plans must conform to the LDF Core Strategy, which has itself been subject to a Habitat Regulation Assessment (HRA), the key issue will be whether the Neighbourhood Plan will potentially: • result an impact to the moors not previously considered; • result in an increase in the likelihood or severity of an impact already assessed; • undermine the avoidance/mitigation measures contained within the Core Strategy to address potential impacts; and/or • enable the more detailed assessment of a potential impact which could not be fully assessed and screened out at the Core Strategy level (these are identified within the Core Strategy HRA). There are the ‘in-combination’ impacts that have to be considered where a plan is in combination with another plan or project (LDF Core Strategy) therefore Neighbourhood Plans may need to be considered through an 'in-combination' assessment.[34]The Council’s Guidance on Assessment goes on to explain that: EU regulations may require a Strategic Environmental Assessment to be undertaken, to form part of formal consultation; a neighbourhood plan which contains allocations for significant land allocations for development, which are not included in the Local Authority Plan, are likely to require a Strategic Environmental Assessment; neighbourhood plans which do not contain such allocations (or simply reflect allocations which have been assessed as part of the Local Authority Local Plan) are less likely to require an SEA; to find out if a neighbourhood plan requires an Strategic Environmental Assessment, a screening opinion should be sought from the Local Authority.

The Screening Form

[35]Attached to the Council’s Guidance on Assessment is a document called “Appendix 1: Neighbourhood Plan Screening Form” (“the Screening Form”).[36]The Screening Form bears the same information in the same font at its head as the Council’s Note: “SB 09/08/13”. It seems to us that if that information is intended to convey a date, it is the date only of issue of the Council’s Guidance on Assessment, rather than the date of the Screening Form, and that whoever completed the Screening Form did so on a template provided by the Council, possibly attached to the Council’s Guidance on Assessment, and did not remove that date. The Screening Form is otherwise undated, although, as we shall describe below, it contains certain dates in its body.[37]Section A of the Screening Form:a. States that it relates to Thorne and Moorends Neighbourhood Plan.b. Describes the Key Issues thus: “Most of the policies in the Neighbourhood Plan are designed to protect and enhance the natural and built environment including the town centre as well as encourage sustainable transport. However, there are six small scale infill housing sites which are allocated in the Plan.”c. Says: “Date Screening Opinion Requested: 26th October 2016”, and “Person requesting Screening Opinion: [Clerk to the Council] on behalf of Thorne and Moorends Town Council”.[38]Section B of the Screening Form sets out a summary of a Screening Opinion, produced by a person whose role is stated as “Principal Planner” but not the entity they represent. The date of assessment, which we take to be the assessment undertaken which resulted in the Screening Opinion summarised, is 14 March 2017. The conclusion of that assessment reads as follows:
“Is an SEA required? Y/N? Yes It is considered that a HRA (Habitats Regulation Assessment) is required.”
[39]Section B of the Screening Form sets out the reason for the conclusion as follows:
“Although they are of a small scale there are six infill housing allocations within the Neighbourhood Plan. These may have a cumulative impact upon Thorne and Hatfield Moors. Any larger/major housing allocations which will be within Flood Zone 3 will be met through the Doncaster Local Plan and a policy is included to help guide that process. This also applies to employment allocations. Other policies which are housing and employment related are: that there should be a mix of housing types; affordable housing should be provided in line with DMBC policies; and that existing employment sites will be protected. Other policies in the Neighbourhood Plan seek to protect and enhance the natural and built environment. This includes designating Local Green Spaces; protecting existing community facilities; protecting and enhancing heritage assets; improving shopping facilities; new and altering shop frontages; development and design; and public realm improvements; a list of priorities to be funded through CIL; Thorne Conservation Area and Thorne Moors Visitor Centre (if development at Thorne Colliery takes place). There is also a number of transport related improvement policies: public transport improvements; improving town centre parking; traffic management improvements; increased parking at Thorne South station; Thorne Conservation Area; and Moorends rail station. Overall the Neighbourhood Plan will lead to positive environmental benefits for Thorne.”
Overall the Neighbourhood Plan will lead to positive environmental benefits for Thorne.”[40]We have not been shown any Screening Opinion, only the summary of it described in Section B of the Screening Form. Section B provides for the approval (and its date) of the Screening Opinion by an officer, but those sections have not been completed.[41]Section C of the Screening Form provides for a summary of internal and external consultation, the former with an Ecologist Planner, the latter with officers from Historic England, the Environment Agency and Natural England. There is no summary of comments from any of those persons.[42]Section D of the Screening Form tabulates an “Assessment”. Inter alia, it records that: in view of the likely effect of the Neighbourhood Plan on sites, an assessment for future development under Article s 6 or 7 of the Habitats Directive (Art. 3.2(b)) will be required because Thorne Moors is within the parish boundary which is covered by the Habitats Directive; there are some housing allocations proposed in the Neighbourhood Plan albeit small infill plots; and the Neighbourhood Plan will inform the determination of planning applications.[43]We have not been able to identify the provenance of the Screening Form, and whether it is, or may be, the, or part of the document described as Appendix 1 to the Basic Conditions Statement dated 29 March 2017, which is the subject of the Request. What is clear, however, is that its contents, specifically its conclusion that an SEA, which we take to mean Strategic Environmental Assessment, is required because of housing development allocations in small infill plots within the compass of the Neighbourhood Plan, appear directly to contradict paragraph 6.2 of the Basic Conditions Statement, which says that no such assessment is required.[44]We note that in her letter to the Tribunal of 6 June 2024 provided in support of her Grounds of Appeal, the Appellant refers to the same Clerk to the Council, to whom we have referred in paragraph 37 above, as emailing the Doncaster Council Local Plans Manager, and saying this:
“Please see attached the finalised documents for Thorne and Moorends Neighbourhood Plan. This will be ready for formal submission once the screening opinion and HRA is added. The date of the screening opinion will need adding to the Basic Conditions Statement.”
We have not seen the email described.[45]By the same letter of 6 June 2024, the Appellant says that on 12 October 2023, Doncaster MBC sent the Appellant copies of certain documents referred to by the Clerk to the Council in office on 29 March 2017:
“Assessment of Sites for Allocation in the Plan”, “Policies Map”, “Main Plan”, Basic Conditions Statement” and “Consultation Statement.”
The Appellant says that Doncaster MBC have told her that it does not hold any of the document files referenced in the Consultation Statement and it does not hold Appendix 1 to the Basic Conditions Statement.[46]In addition to the issue we have described relating to the Screening Opinion, the Appellant observes that the Basic Conditions Statement contains a number of other inaccuracies, or inconsistencies, which she says were designed to mislead, relating to the location of nature sites requiring a Habitats Regulation Assessment, and the application of inappropriate development policies resulting in planning permission which would not otherwise have been available

The Commissioner’s investigations

[47]During the Commissioner’s investigations, the Commissioner asked the Council whether it actually held Appendix 1 as requested by the Appellant. The Commissioner also indicated that, looking at the Request in isolation, he did not consider that it would be deemed vexatious or overly burdensome to respond to, and he asked for further details of the Appellant’s other requests for information from the Council.[48]The Council responded, confirming that it could not locate a copy of Appendix 1 to the Basic Conditions Statement, and had therefore concluded that it did not hold the information requested.[49]The Council confirmed that the Appellant had made at least 35 requests for information between 28 November 2022 and 20 November 2023, and, prior to the commencement of employment by the Council officer corresponding with the Commissioner, 54 complaints between 11 March 2013 and December 2018. Judging from the data supplied to the Commissioner by the Council, at least almost all the 35 requests made from November 2022 to November 2023 related to the Neighbourhood Plan.[50]At the same time, it seems that the Council provided the Commissioner with a selection of correspondence between the Council and the Appellant to demonstrate. That included a document called “Appendix One: methodology for house site selection and list of housing sites”, attached to a document called “Thorne & Moorends Neighbourhood Plan up to 2032: Assessment of sites for allocation in the plan”. We do not understand that to be the Appendix 1 sought by the Request, but information provided by the Council on 25 January 2023 in response to a different request by the Appellant made on 17 January 2023.

Is the Request manifestly unreasonable?

[51]In Dransfield v Information Commissioner & Another and Craven v Information Commissioner & Another [2015] EWCA Civ 454 (CA), the Court of Appeal held that the tests as to whether a request is “vexatious” under s14 FOIA and “manifestly unreasonable” under Regulation 12(4)(b) EIR have, to all intents and purposes, the same meaning.[52]In Information Commissioner v Devon CC and Dransfield [2012] UKUT 440 (AAC), the Upper Tribunal had concluded that “vexatious connotes manifestly unjustified, or involving inappropriate or improper use of a formal procedure” [27]. The Upper Tribunal suggested four broad issues or themes to be considered when assessing vexatiousness, namely: the burden on the public authority and its staff; the motive of the requester; the value or serious purpose of the request in terms of objective public interest in the requested information; and any harassment of or distress to the public authority’s staff. The Upper Tribunal stressed the importance, nonetheless, of taking a holistic and broad approach to assessing whether a request is vexatious.[53]The Court of Appeal broadly endorsed that approach, emphasising the need for a decision maker to consider all the relevant circumstances. Arden LJ observed that “vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public. Parliament has chosen a strong word which therefore means that the hurdle of satisfying it is a high one and that is consistent with the constitutional nature of the right.” [68].[54]In Dransfield, the Upper Tribunal observed in relation to the issue of burden that the “present burden may be inextricably linked with the previous course of dealings” [29]. It is necessary to consider the context and history of the request, including the number, breadth, pattern and duration of previous requests.[55]While the Upper Tribunal noted that although FOIA is both “motive blind” and “applicant blind”, the application of s14(1) FOIA cannot disregard the question of the underlying rationale or justification for the request, or the wider context of the course of dealings between the individual and the public authority. A request stimulated by a genuine public interest concern may become vexatious by drift where that proper purpose is overshadowed and extinguished by the improper pursuit of a longstanding grievance against the public authority (Oxford Phoenix v Information Commissioner [2018] UKUT 192 (AAC)).[56]We bear in mind that the starting point, however, is whether a request, not the requester, is vexatious.[57]There is in the bundle before us a document dated 28 November 2023, headed “FOI vexatious decision at meeting on 14th November 2023”. It is described in the index to the bundle as “Letter - Council to Appellant – Outcome of internal review”. We cannot determine whether it was ever sent to the Appellant or whether it was simply provided to the Commissioner in his investigations.[58]In any event, it says this:
“The Town Council is open and transparent and accountable and appreciates the rights of access to official information as an important constitutional right, it also recognises that the threshold for deciding requests is vexatious is a high one. However, it deemed that these requests by one individual regarding the Neighbourhood Plan are a misuse or abuse of the FOIA and that the requests submitted are intended to be annoying, disruptive and have a disproportionate impact on a public authority. The requests to a Town Council of this size where one individual staff member answers the requests is a strain on resources and gets in the way of delivering mainstream services or answering legitimate requests. These requests can also damage the reputation of the legislation itself. The Council considered the burden of the requests on the authority and its staff, the motive of the requester was not taken into account but recognised it was assumed to be related to a personal grievance with a planning application near their residence, and that the requests were causing distress to this staff member and having a negative effect on other team members also considering the number of repeated requests. The requests were causing a disproportionate or unjustified level of disruption, irritation or distress and the Council aims to protect its resources and staff. Decision upheld.”
[59]We do not understand the Appellant to dispute the Council’s description of the volume or frequency of her requests. From 2013 to 2018, the Appellant has been submitting on average at least one request a month. We do not have information for the period from December 2018 to November 2022, but from November 2022 to November 2023, the Appellant has made the following requests: one in November, none in December, seven in January, none in February, five in March, four in April, four in May, three in June, two in July, two in August, two in September, four in October, and one in November 2023. The requests are very frequently just a couple or a few days apart. The Council explained to the Commissioner that there are vast amounts of emails, information and documents passing between the Appellant and the Council in this context.[60]Taking each of the four themes identified in Dransfield in turn: first, the burden on the public authority and its staff. We have not seen the very great majority of the Appellant’s requests, but their sheer volume and regularity over such an extended period are remarkable. We are prepared to accept that dealing with them has imposed a significant burden on the Council and its staff, including by reason of their spacing; we can imagine that the Council may still be preparing a response to one request, when the next request arrives. Judging by the correspondence generated in relation to the Request alone, it is likely that a very great volume of correspondence has been generated by the Appellant’s requests over the years, and we consider, based on what we have seen relating to the Request, that the requests will likely have required sustained close reading and analysis to divine the key points.[61]While we accept that the Request itself was precise and concise, and may not, of itself, have imposed any significant burden on the Council, we consider that the burden of responding to it is inextricably linked to the previous course of dealings, that is to say, two earlier requests on 11 October 2023 and the prior extensive run of requests by the Appellant on the same subject, which we have already described. To that end, we are prepared to accept that responding to the Request would impose a burden on the Council.[62]Second: any harassment of or distress to the public authority’s staff. We have not seen the content of the great majority of the requests. That very small selection which we have seen is inoffensive. It is tenacious but courteous, if occasionally frustrated. We are nevertheless prepared to accept that a single member of staff, indeed even a small team of staff, on the receiving end of such requests as have been described by the Council, may well be sincerely distressed or harassed by their sheer volume and frequency over such an extended period of time, and, in that context, that receipt of the Request itself may have had that effect.[63]Third: the Appellant’s motive. The Appellant believes that the Council has falsified parts of the Basic Conditions Statement, including those relating to the need for a Strategic Environmental Assessment. The Council believes that the motive of the Request relates to a personal grievance harboured by the Appellant concerning a planning application near her residence. Either or both may be true. We cannot determine.[64]However, we can and do determine the fourth issue, that is, whether the Request has value or serious purpose in terms of objective public interest in the request information. We find that it does. The Basic Conditions Statement says, by reference to an Appendix 1 referred to in the body of the Statement, that no Strategic Environmental Assessment is required. However, Appendix 1: the Neighbourhood Plan Screening Form, provided by the Appellant to the Commissioner, would appear to indicate the existence of a screening opinion to the effect that a Strategic Environmental Assessment is required, which the Screening Form purports to summarise. Assuming the Basic Conditions Statement and the Screening Form refer to the same subject matter, and on the balance of probabilities we find that they do, there would appear to be a significant inconsistency between them.[65]We cannot, and it is not our role to, determine how such an inconsistency has come about. We do consider, however, that the purpose of the Request, at least in part, is to attempt to investigate or understand that inconsistency. We accept that that is a serious, in the sense of non-frivolous, purpose. We also accept that the Request has value, to the extent that it relates to the protection of the environment by laws and regulations, and may, if the Appellant is correct in her complaints about the Council, disclose irregularities or deficiencies in the Council’s, or Doncaster MBC’s, approach to assessing, and enabling informed consultation on, the environmental and other impacts of the Neighbourhood Plan.[66]We remind ourselves of the need to take a holistic view. In our view, the value and serious purpose we have identified are sufficient to defeat a claim that the Request is manifestly unreasonable, even against the background and likely effect of the Appellant’s multiple other requests of the Council relating to the Neighbourhood Plan, which we accept may tend to indicate that the Request itself is a burden and may cause harassment or distress.[67]We note that the Request was made after the Appellant had exhausted attempts to obtain the responsive information from Doncaster MBC earlier in October 2023, which it said it did not hold. If it is correct that the Clerk to the Council had informed Doncaster MBC on 29 March 2017 that the Neighbourhood Plan would be ready for formal submission once the Screening Opinion and Habitats Regulations Assessment were added, that naturally gives rise to these questions: whether and, if so, when were they added, and what did they say? In circumstances where development has subsequently taken place, consideration of the permission for which might reasonably be thought to have required engagement with the content of such documents, the Appellant’s enquiries as to these matters seem to us to be legitimate. We do not consider that the Request is manifestly unreasonable.

Conclusion

[68]For the reasons we have given, we find that the Request is not manifestly unreasonable. The Council is not entitled to rely on Regulation 12(4)(b) EIR to refuse the Request.[69]Accordingly, the Decision Notice is not in accordance with the law.[70]The Appeal must be allowed.[71]We issue the Substituted Decision Notice on the face of this judgment.[72]We should make two things clear. First, this decision relates only to the application of Regulation 12(4)(b) EIR. The Council must consider the Request afresh. It may not hold the requested information. It has already told the Commissioner it does not. But it must respond to the Request in compliance with EIR. Second, EIR does not regulate what information a public authority should hold, or the form in which it holds it.