Catherine Vassar v The Information Commissioner [2026] UKFTT 361 (GRC)

[2026] UKFTT 00361 (GRC)Case Reference: FT/EA/2025/0066
First-tier Tribunal
(General Regulatory Chamber)
Date 11 March 2026
Information Rights
Before
JUDGE A. MARKS CBEMEMBER J. MURPHYMEMBER M. SAUNDERS
Between
CATHERINE VASSARAppellantTHE INFORMATION COMMISSIONER (“the Commissioner”)RespondentRobert Bussey for AppellantSapna Arora, Solicitor for RespondentDecision: The appeal is allowed: a substitute Decision Notice is set out below.Substitute Decision Notice:To: Stockton-on-Tees Borough Council Freedom of Information Team Municipal Buildings Church Road Stockton-on-TeesTS18 1LDemail: foiandcomplaints@stockton.gov.ukRef. Environmental Regulations 2004 Ref. 0189/2425Re. ICO Decision Notice IC-316821-C4W2 dated 13 December 2024 - Catherine VassarStockton-on-Tees Borough Council must, by no later than 4pm on the date 35 working days after promulgation of this First-tier Tribunal decision reference FT/EA/2025/0066 (or, if later, until the outcome of any appeal of that decision), provide to the Appellant, Catherine Vassar, the Closed Bundle of material previously provided to the Tribunal under GRC Rule 14 with the redaction only of the personal details of individuals (i.e. their names, email addresses, telephone numbers and work titles) under the exemption for personal data in accordance with section 40(2) of the Freedom of Information Act 2000.A failure to comply with this Substitute Decision Notice could lead to contempt proceedings.REASONS

Introduction

[1]This is an appeal against the Information Commissioner’s decision notice IC-316821-C4W2 dated 13 December 2024 which held that Stockton-on-Tees Borough Council ("the Council") was entitled to rely on Regulation 12(5)(d) of the Environmental Information Regulations 2004 (“EIR”) to refuse to disclose some of the information requested by the Appellant (“CV”).[2]The parties agreed to the Tribunal deciding this appeal on the papers rather than requiring an oral hearing. The Tribunal was satisfied, in accordance with Rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended) ("GRC Rules"), that it could properly determine the issues in this case without an oral hearing.

Background

[3]The request relates to planning applications for a major housing scheme known as Wynyard Village Extension within the Council's area.

The request for information, internal review and responses

[4]On 21 April 2024, CV emailed the Council as follows:
"I would be grateful if you could supply the material requested below under the provisions of The Environmental Information Regulations 2004 and The Freedom of Information Act 2000, connected to the Wynyard Village Extension Development(13/0342/EIS): 1. Planning Application 17/2777/REM. Formal and informal material, including ,but not limited to, minutes of meetings, emails in and out from accounts under control of relevant officers, notes of telephone conversations, notes, memos, letters and pre-application advice relating to discussions held between any officer of the Council and the Applicants or their agents and all other parties, relating to this application. 2. Planning Application 20/2408/OUT. Formal and informal material, including, but not limited to, minutes of meetings, emails in and out from accounts under control of relevant officers, notes of telephone conversations, notes, memos, letters and pre-application advice relating to discussions held between any officer of the Council and the Applicants or their agents and all other parties, relating to this application. 3. Planning Application 22/2579/FUL. Formal and informal material, including, but not limited to, minutes of meetings, emails in and out from accounts under control of relevant officers, notes of telephone conversations, notes, memos, letters and pre-application advice relating to discussions held between any officer of the Council and the Applicants or their agents and all other parties, relating to this application."
[5]On 15 May 2024, the Council responded, providing some information within scope of the request.[6]On 25 May 2024, CV requested a review stating that certain material had not been supplied, for example, the pre-application file mentioned in one of the disclosed documents. CV also noted that the information disclosed did not include significant issues such as the reserved matters permission (17/2777/REM) allowing significantly more houses to be constructed than allocated by the outline permission (Ref. 13/0342/EIS).[7]Following a review, on 30 May 2024 the Council wrote to CV:(a) citing the exception in EIR 12(5)(d) which permits the withholding of information to the extent that its disclosure would adversely affect the confidentiality of Council proceedings;(b) stating that, having weighed the public interest, the Council maintained itsoriginal decision not to disclose all the requested information;(c) however, the Council asserted it was confident that it had shared all relevantinformation, noting that critical information such as plans and reports is alwaysavailable in the public domain; and(d) relevant officers had checked their individual email accounts. However, whenan officer leaves the employ of the Council, their email account is deleted. Also,the Council has a six-month retention period for emails after which they areautomatically destroyed.

The Commissioner’s investigation and Decision Notice

[8]On 28 June 2024, CV complained to the Commissioner about the Council's handling of her request for information.[9]Having conducted an investigation, including raising questions of both the Council and CV, on 13 December 2024, the Commissioner issued decision notice IC-316821-C4W2.[10]The decision notice in summary concluded that EIR 12(5)(d) is engaged and that the public interest balance weighed in favour of the exception being maintained.

Appeal to the Tribunal

[11]On 22 January 2025, CV's representative sent a Notice of Appeal to the Tribunal challenging the Commissioner’s Decision Notice ("DN").[12]The grounds of appeal are that:(a) EIR 12(5)(d) is not engaged because: i. the information requested relates to pre-application advice which, while potentially commercially sensitive or confidential during its preparation, loses its confidential status when it informs public decision-making in planning applications; ii. there is no statutory or common law basis to protect the confidentiality of pre-application advice where the advice relates to breaches of planning conditions; and iii. no evidence has been provided that disclosure of the requested information would have an adverse effect: speculation about harm is insufficient under EIR.(b) Even if EIR 12(5)(d) is engaged, the public interest favours disclosure because: i. the requested information relates directly to breach of an associated outline planning permission with material implications for the environment and the public; ii. pre-application advice often shapes applications and informs planning decisions; iii. EIR 12(2) imposes a strong presumption in favour of disclosure; iv. generally, disclosure would:• ensure accountability for decision-making;• enable the public to scrutinise whether the Council acted appropriately in considering these applications;• foster trust in the planning process;• enable the public to understand how the Council advised the applicant;• clarify whether the Council provided advice consistent with the conditions of the outline permission;• underline the importance of transparency in environmental matters, critical to informed public participation and trust.[13]CV seeks overturning of the DN and disclosure of the withheld information.

The Law

[14]It is not disputed that EIR, rather than FOIA, is the applicable statutory regime in this case.

Duty to make available environmental information on request – subject to exceptions

[15]EIR 5 requires public authorities that hold environmental information to make it available on request as soon as possible and no later than 20 working days after receipt of the request.[16]EIR 12(1) provides that public authorities may refuse to disclose environmental information requested if an exception applies and if:
"...(b) In all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information."
[17]EIR 12(2) states that public authorities shall apply a presumption in favour of disclosure but subsequent paragraphs of EIR 12 provide various exceptions. The exception relevant to this case is: (5) …a public authority may refuse to disclose information to the extent that its disclosure would adversely affect— (d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law; ...[18]As the Commissioner's guidance explains, for EIR 12(5)(d) to be engaged, there are four questions to consider:(a) What are the proceedings?(b) Is the confidentiality of those proceedings provided by law?(c) Would disclosing the information adversely affect that confidentiality?(d) In all the circumstances of the case, does the public interest in maintaining the exception outweigh the public interest in disclosure?

Sections 57 and 58 FOIA: The role of the Tribunal

[19]Section 57 FOIA entitles either the requester or the relevant public authority to appeal to this Tribunal against the Commissioner’s decision notice.[20]Under s. 58 FOIA, if the Tribunal considers that the decision notice was either wrong in law or, to the extent that the notice involved an exercise of discretion by the Commissioner he ought to have exercised it differently, the Tribunal shall either allow the appeal (or substitute the decision notice) or dismiss the appeal.[21]The Tribunal can also review any finding of fact on which the decision notice was based.

Evidence

[22]Prior to the hearing the parties had submitted written evidence and submissions. These were set out in an Open Bundle of 589 pages (including indices). CV also provided an addendum to her skeleton argument included in the Open Bundle. The Tribunal was further provided with a Closed Bundle of material as well as all the Case Management Directions in this case.[23]CV is inevitably disadvantaged by not seeing the Closed Bundle which has been withheld in accordance with GRC Rule 14(6) and the Tribunal’s Practice Direction on Closed Material. The Commissioner has not provided the ‘gist’ of such material to mitigate such disadvantage. However, the panel has seen and considered those materials which are all dated July or August 2017. They comprise two emails from the Council and a short covering letter from a housing developer, together with four annotated site layout plans, and a developer's design study (undated but apparently enclosed with the developer's letter in July 2017). Submissions Summary of submissions on behalf of the Commissioner[24]The Commissioner relies on the DN and his response to CV's grounds of appeal.[25]In summary, the DN considered first the three elements of the exception in EIR 12(5)(d):(a) The confidentiality referred to by the public authority relates to the confidentiality of "proceedings" i. The Commissioner interprets "proceedings" as possessing a certain level of formality, including but not limited to:a. formal meetings to consider matters within the authority's jurisdiction;b. situations where an authority is exercising its statutory decision-making powers; andc. legal proceedings. ii. The information withheld in this case relates to a pre-application advice process offered by the Council. The Commissioner has previously acknowledged in a range of decisions FER06967692; FER09004143; IC-115533-Y4T64; and IC-206377-X4X45 that such a process represents "proceedings" for the purposes of the EIR 12(5)(d) exception.(b) The confidentiality must be provided by law i. The Commissioner accepted the Council's submission that the information is covered by the common law of confidentiality because: a. it is not trivial; b. it was submitted voluntarily as part of the pre-application advice process; and c. all applicants would expect confidentiality because the Council's website states that the service is "free, confidential, and provides guidance on what you may need to do to have the best opportunity to get your application approved."(c) It must be demonstrated that disclosure would have an adverse effect on the confidentiality of the proceedings i. The Commissioner agreed with the Council's arguments that publication of the information would undermine the expectation that the pre-application advice process is confidential. ii. Given the applicant in this case specifically marked the documents as "strictly confidential" and sensitive confidential information was contained within those documents and discussed at the pre-application meeting, the Council considers there was a statutory basis for regarding the proceedings as confidential - and disclosure would render individuals less willing to provide information in future for fear of later disclosure.[26]Hence the Commissioner concluded in his decision notice that the exception at EIR 12(5)(e) is engaged.

Weighing the public interest

[27]In weighing the public interest factors in favour of maintaining the exception and in favour of disclosure of the requested information, the DN states, in summary:(a) While there is a statutory presumption in favour of disclosure, and a public interest in public authorities being open and transparent about their decision-making processes, especially in planning matters, there is a stronger public interest in ensuring that the Council is able to provide a robust pre-application process to prospective planning applicants, thus improving the efficiency and effectiveness of the planning application system.(b) The Commissioner accepted the Council's argument that there would be no gain to the public interest by releasing the requested information because the pre-planning application and actual planning application differed greatly. Disclosure of the requested information would not increase public knowledge as there was no information the public is not already aware of.(c) The planning application itself was agreed by councillors at a public planning committee meeting in May 2024 at which the objectors were present and CV made representations. Although the planning decision was issued on 8 May 2024 and the application was therefore determined, withholding the requested information is still necessary due to the applicant's request for confidentiality and the irrelevance of the pre-application information to the wider public interest for the above reasons.[28]The Commissioner concluded that the public interest in maintaining the exception at EIR 12(5)(d) outweighs the public interest in disclosure of the withheld information. Commissioner's further

Submissions

[29]In his response on 30 May 2025 to CV's Grounds of Appeal, the Commissioner further submitted that:[30]There are two issues in this case are:(a) whether EIR 12(5)(d) applies; and(b) if so, does the public interest favour maintaining the exception.[31]The Commissioner considers that the answer to both questions is yes.[32]Specifically in response to each of the appeal grounds headlined below, the Commissioner's submissions are:(a) The confidentiality of pre-application advice is not protected by law The DN cites various previous decision notices where the Commissioner has upheld that the pre-application process is covered by EIR 12(5)(d). To date the Tribunal has not disagreed that such a process represents "proceedings" for the purposes of the exception. This ground of appeal can therefore be dismissed.(b) The Council has failed to demonstrate that disclosure would cause harm The Commissioner believes that the Council plainly has demonstrated the adverse effect as the customer specifically marked the documents as strictly confidential; andif the information were disclosed, in the future individuals would be less willing to provide information.These adverse effects mean that this ground of appeal can be dismissed.(c) The public interest favours disclosure Most public interest factors raised by CV's appeal were before the Commissioner during his investigation. The Commissioner notes that CV believes there might be some wrongdoing by the Council in relation to the planning applications for this development. However, the Commissioner's guidance on EIR 12(5)(d) says that "There may be a strong public interest in transparency if there has been a suspicion of wrongdoing or maladministration - however, this is only likely to be the case if such suspicions are credible and supported by evidence."(emphasis added) The Commissioner has not seen any such evidence nor do the appeal grounds provide any.[33]The Commissioner says that CV has advanced no argument of substance which challenges his findings. The First-tier Tribunal caselaw cited by CV does not assist as such decisions are non-binding and each case turns on its own facts.[34]The Commissioner concludes this appeal should be dismissed.

Summary of submissions on behalf of the Appellant (CV)

[35]In her reply dated 3 June 2025 to the Commissioner's above response, and in her skeleton argument dated 2 June 2025 and addendum skeleton argument dated 9 September 2025, CV submits in summary:

Planning history

[36]In her 3 June 2025 response, CV did not refer to her information request or the Council's response but outlined the planning history of the applications at the core of her request. In brief, on 1 April 2014, the Council's planning committee considered an Outline Planning application 13/034/EIS for 500 homes on a site of around 85 hectares.[37]In resolving to grant Outline Planning Permission, members of the Committee endorsed all the conditions recommended by the planning officer, including a requirement for a s.106 agreement to be signed by 31 July 2014. That date was repeatedly extended so the s.106 agreement was not signed until 27 January 2017 (2½ years after the original date). The signed s.106 agreement included as an appendix a draft approval notice for the development. The approval notice was issued three days later.[38]However CV says, the approval notice contained conditions very different from the conditions presented to the Committee in 2014, effectively removing all direct references to the parameter plan (PL-02) with a housing density of 500 units rather than 650.[39]CV claims that this removal has resulted in subsequent reserved matters applications, including 17/2777/REM and the further applications 20/2408/OUT and 22/2579/FUL (all being the subject of her information request) being in breach of the permission "afforded to the Outline Planning application 13/0342/EIS".[40]Thus, CV argues, the land in question has "with the aid of the Council" been built out to a higher density than specified in the development area plan at the heart of the planning consent and in "an apparent breach of planning control."

Skeleton argument

[41]In her skeleton argument, CV submits that: EIR 12(5)(d) not properly engaged (a). In EIR 12(5)(d), "proceedings" must be interpreted in context: pre-application discussions do not necessarily constitute proceedings whose confidentiality is protected by law once the process leads to a public decision unless "truly confidential by legal necessity" which has not been demonstrated here. On the contrary, she says the advice is part of a process which culminated in the approval of a development alleged to breach outline planning conditions. Adverse effect not evidenced (b). The Council and Commissioner rely on speculative assertions that disclosure might discourage open engagement by applicants in future. No concrete evidence is provided of specific, likely harm. There is no statement from officers or developers indicating a real risk of disengagement were this pre-application advice to be disclosed. The threshold under EIR is actual demonstrable harm supported by evidence. Public interest strongly favours disclosure (c). The public has a legitimate interest in understanding how a planning decision may have been made contrary to legal conditions; assessing whether the Council acted property in accepting or advising on the reserved matters; and holding authorities accountable for adherence to planning law, especially when environmental impact is at stake. (d). Disclosure of the advice would enable scrutiny of whether the Council facilitated or failed to prevent the alleged breach, directly engaging the purpose of EIR and the Aarhus Convention which promotes access to information in environmental decision-making to ensure transparency and public participation. (e). Especially in the context of alleged planning breaches, the public interest in disclosure is compelling and clearly outweighs any general interest in confidentiality.

Addendum to skeleton argument

[42]In her addendum skeleton argument, CV drew attention to a decision of the Commissioner dated 10 July 2025 (case reference IC-350626-F5F6) involving Kent County Council ("the Kent decision").[43]CV argued that the Kent decision is "persuasive" and represents "a fuller and more careful application" of EIR 12(5)(d) than was applied in her case. Although acknowledging that each case turns on its facts, she submits the Commissioner is expected to apply EIR consistently.[44]CV submits that the Kent decision shows that where confidentiality and harm are not clearly evidenced, and where the information underpins public decision-making, disclosure should follow even where there is no allegation of wrongdoing. Discussion and decision The facts

Discussion and decision

[45]The panel first considered the relevant facts of this case. Based on the open evidence the panel has seen, the panel has made the following findings of fact based on "the balance of probabilities" (that is, what is more likely than not):(a) Some information was provided by the Council in response to CV's request.(b) The panel is not aware what precisely the provided information comprised.(c) Information contained in the Closed Bundle falls within the scope of the request but was not disclosed.(d) Despite the Council's assertion, which the Commissioner cited in the DN, that the customer specifically marked as "strictly confidential" documents provided as part of the pre-application proceedings, none of the information in the Closed Bundle is so marked.(e) The Council states on its website that its pre-application service "... is free, confidential and provides guidance on what you may need to do to have the best opportunity to get your applications approved."(f) The materials in the Closed Bundle all pre-date the information request, and the grant of full planning permission granted on 8 May 2024 by nearly seven years. Error of law or wrongful exercise of discretionin balancing the public interest Is there an error of law in the Commissioner’s Decision Notice?

Error of law or wrongful exercise of discretionin balancing the public interest

[46]Having made the above findings of fact, the remaining issues for the panel in this case are(a) whether the Commissioner made any error of law in his decision and(b) whether the Commissioner ought to have exercised his discretion differently.

Error of law?

[47]The first issue is whether the Commissioner erred in law in finding that EIR 12(5)(d) is engaged.[48]Having carefully considered all the evidence and the parties' submissions (including the materials in the Closed Bundle which the panel has been able to assess for itself), the panel considered each of the elements required for engagement of EIR 12(5)(d) as set out in paragraph 16 above.

What are the proceedings?

[49]Based on the Commissioner's previous decisions - for example IC-115533-Y4T6 involving London Borough of Hackney - though not binding but only persuasive, the panel accepts that pre-application enquiries and associated advice have the necessary formality to constitute "proceedings" for the purposes of EIR 12(5)(d).[50]The panel therefore concludes that this first condition is met.

Is the confidentiality of those proceedings protected by law?

[51]The panel notes that the requirements of the common law of confidence are that(a) the proceedings have the necessary quality of confidence, and(b) information was communicated in circumstances importing an obligation of confidence.[52]The panel considers that the "necessary quality of confidence" criterion is satisfied in this case because the information provided as part of pre-application discussions was not otherwise accessible nor was it trivial. As for an "obligation of confidence" being imported, in this case the Council's website states that its pre-application advice is "free and confidential". The panel therefore considers that the developers would have expected preliminary discussions about their potential planning application to take place in private and without fear of third party involvement.[53]The panel therefore accepts that in this case the pre-application proceedings were protected by the common law of confidence.

Would disclosure of the information adversely affect the confidentiality of the proceedings?

[54]In the DN, the Commissioner accepted the Council's statement that flawed planning applications are burdensome and time-consuming as well as costly for applicants. Pre-application proceedings are designed to address such flaws in advance, thereby enhancing the efficiency and effectiveness of the planning process.[55]The panel accepts that were such pre-application proceedings not to be confidential, applicants might fear disclosure of their plans at too early a stage, resulting in reduced use of pre-application processes thus adversely affecting the efficiency and effectiveness of the planning system to the detriment of both planning authorities and developers.[56]However, the Commissioner's guidance on EIR 12(5)(d) says:
"Just because particular proceedings are confidential, it doesn't mean that you can automatically rely on this exception. Even if you are satisfied that the proceedings are confidential, you can still only use this exception if disclosing the information would adversely affect that confidentiality. 'Adversely affect' means there must be an identifiable harm to, or negative impact on, the confidentiality of the proceedings. The threshold for establishing that disclosure "would" have an adverse effect is a high one. It is not enough to demonstrate that the adverse effect "might" or "could be likely" to occur. You must demonstrate that it is more probable than not that the adverse effect would occur if the information were disclosed."
(emphasis added)[57]As the Commissioner observed at paragraph 76 of the Kent decision; "While...pre-application enquiries and the related advice may be provided within a confidential context, since the introduction of the EIR, public authorities should be aware that no information can be subject to a blanket restriction on disclosure. It should not be the case that any public authority "routinely" withholds particular planning information in response to EIR requests. It is the duty of public authorities to show in each specific instance that information is being withheld for the reasons in the exception being applied." (emphasis added)[58]The panel therefore considers that while information provided as part of pre-application proceedings (or other material such as pre-application meeting notes, minutes, emails to and from applicants and relevant officers, notes of telephone conversations, memos, letters and pre-application advice) may be confidential at the time of the pre-application proceedings, once the planning application itself has been submitted and approved during a transparent and publicly open planning process, the confidentiality of such information has to be considered afresh.[59]In other words, the panel considers that the confidentiality of pre-application proceedings - and information provided as part of or in relation to such - cannot be regarded as creating a blanket restriction for all time on disclosure of such information. On the contrary, depending on the circumstances of the case, the panel considers that the confidentiality of materials relating to or provided as part of pre-application proceedings, may properly be regarded as time-sensitive. As a result, as time passes and circumstances change, its confidentiality may decline such that no adverse effect of its disclosure on the confidentiality of the proceedings themselves can be demonstrated. In such cases, the "adverse effect" criterion of EIR 12(5)(d) would not be met.[60]Looking at this case in such a light, the panel notes that:(a) None of the material in the Closed Bundle is marked as "confidential".(b) The Council argued there is an expectation of confidence in its pre-application service, given the rubric on its website. However, Council in its submissions to the Commissioner also asserted that "information provided at the pre-application stage remains confidential" but gave no evidence or argument to substantiate this.(c) As in the Kent decision, at the time of the request in this case the pre-application process was long complete: the planning application had been submitted and approved years before.(d) The Commissioner's "Regulation 16 Code of Practice - discharge of obligations of public authorities under the EIR" states (in paragraph 63 on p.13) when receiving information from a third party the public authority "...should still clearly inform [them] that the EIR applies. This means there cannot be any absolute guarantee that the information would never be disclosed..." (emphasis added).(e) While there is no evidence in this case that the Council informed the providers of the information (the developers) that, as a public authority, it is subject to disclosure obligations under EIR, the developers in this case are substantial and sophisticated commercial entities, operating on a national scale, with huge experience in large housing developments. As such, they are well-versed in planning matters and would - or ought to - have been aware of the Council's legal duties under EIR.(f) There is no specific evidence to substantiate the assertion that, at the time of the request years after the grant of planning permission, disclosure of the requested materials in this case would adversely affect the confidentiality of pre-application proceedings between the Council and the developer, or indeed would undermine the confidence of future planning applicants in the confidentiality of pre-application proceedings.[61]In all the circumstances, the panel therefore considers that neither the Council nor the Commissioner has demonstrated that, at the time of responding to CV's request for information, disclosure would adversely affect the confidentiality of the pre-application proceedings which had taken place years before the request was made.[62]As the panel finds this "adverse affect" criterion for engagement of the EIR 12(5)(d) is not met, the panel concludes that the Commissioner made an error of law in finding that the exception in EIR 12(5)(d) is engaged in this case.[63]Because of this conclusion, the panel did not go on to consider whether the DN demonstrates wrongful exercise of discretion in balancing the public interest.

Conclusion

[64]For the reasons set out above, the panel finds that the Commissioner’s DN was wrong in law.[65]The appeal is therefore allowed.[66]A substitute Decision Notice is set out at the start of this decision.[67]As the substitute Decision Notice requires the Council to respond to the request for information, to preserve the right to any further appeal, the "Closed Bundle" remains confidential under GRC Rule 14 for 35 days from promulgation of this decision or, if later, until the outcome of any appeal of this decision.