Ian Driver v The Information Commissioner [2026] UKFTT 611 (GRC)

[2026] UKFTT 00611 (GRC)

Case Reference: FT/EA/2025/0119

First-tier Tribunal

General Regulatory Chamber

Hearing Heard on: 17 December 2025

Date 23 April 2026

Information Rights

Heard by Cloud Video Platform

Before

JUDGE STEPHEN ROPER

MEMBER ANNE CHAFER

MEMBER DR PHEBE MANN

Between

IAN DRIVERAppellant

THE INFORMATION COMMIsSIONERRespondent

in person for Appellant

did not appear and was not represented for Respondent

Decision: The appeal is Allowed in part

Substituted Decision Notice:

The Tribunal’s Substituted Decision Notice in case reference FT/EA/2025/0119, set out below, is substituted for Commissioner’s Decision Notice reference IC-330801-G9P4, dated 19 February 2025, with regard to the request for information made to Thanet District Council by Ian Driver dated 31 March 2024.

Substituted Decision Notice

[1]This Decision Notice applies to the request made to Thanet District Council (the “Council”) by Ian Driver dated 31 March 2024 (the “Request”).

[2]The Council must disclose all of the information it holds within the scope of Part 1 of the Request. For these purposes, ‘Part 1 of the Request’ has the meaning given in the Tribunals’ decision below.

[3]The Council must take the above steps within 35 days of this decision being sent to it in accordance with the directions below, or (if there is an application to appeal this decision) within 28 days after being notified of an unsuccessful outcome to such application or any resulting appeal.

[4]The Council may withhold the information it holds within the scope of Part 2 of the Request in reliance on the exception in regulation 12(4)(d) of the Environmental Information Regulations 2004 (the “Regulations”), as that regulation is engaged and the public interest favours maintaining it. For these purposes, ‘Part 2 of the Request’ has the meaning given in the Tribunals’ decision below.

[5]The Council breached regulation 14(2) of the Regulations by failing to issue a refusal notice within 20 working days following the date of receipt of the Request.

[6]The Council breached regulation 11(4) of the Regulations by failing to issue an outcome to its internal review within 40 working days following the date of receipt of the request for the internal review.

[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 Thanet District Council within 14 days of its promulgation. REASONS

Preliminary matters

[1]In this decision, we use the following terms to denote the meanings shown: Appellant: Ian Driver. Commissioner: The Information Commissioner (the Respondent). Council: Thanet District Council. Decision Notice: The Decision Notice of the Commissioner dated 19 February 2025, reference IC-330801-G9P4, relating to the Request. Duty to Disclose: The duty of a public authority to make available on request any environmental information which it holds, pursuant to regulation 5(1) (set out in paragraph 26). EIRs: The Environmental Information Regulations 2004. FOIA: The Freedom of Information Act 2000. Ground 1: The first of the Appellant’s grounds of appeal, as referred to in paragraph 18.a. Ground 2: The second of the Appellant’s grounds of appeal, as referred to in paragraph 18.b. Ground 3: The third of the Appellant’s grounds of appeal, as referred to in paragraph 18.c. Ground 4: The fourth of the Appellant’s grounds of appeal, as referred to in paragraph 18.d. Montague case: The decision of the Upper Tribunal in Montague v The Information Commissioner and Department for International Trade

[2022] UKUT 104 (AAC)

. O’Hanlon case: The decision of the Upper Tribunal in O’Hanlon vInformation Commissioner and Health and Safety Executive

[2025] UKUT 66 (AAC)

. Part 1 Information: The information which was requested by way of Part 1 of the Request. Part 1 of the Request: As referred to in paragraph 48.a. Part 2 Information: The information which was requested by way of Part 2 of the Request. Part 2 of the Request: As referred to in paragraph 48.b. Port: The Port of Ramsgate. Project: The project for the development of berth 4/5 at the Port, as referred to in the Request (and in paragraph 5). Public Interest Test: The test, pursuant to regulation 12(1)(b) (set out in paragraph 34), 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 31 March 2024, as set out in paragraph 6. 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; and

d. 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 rely on regulation 12(4)(d) (material in the course of completion) to withhold the Requested Information.

Background to the Appeal

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

Background context

[5]It may be helpful to set out the following, taken from the Commissioner’s response to the appeal:

“The Port…is a harbour situated in Ramsgate and it is owned and operated by [the Council]. The Port spans over 30 acres of land. Since 2013 there were no commercial ferry operations at the Port but it now hosts the import and processing of aggregates which are handled via berth 4/5. In January 2020 the Council issued an invitation to tender for the replacement of berth 4/5. The planned development of the Port is expected to make it profitable and to support green industry.”

The Request

[6]On 31 March 2024, the Appellant contacted the Council and requested information in the following terms: “Please tell me as of the date of the receipt of this request:- 1) the full amount of money spent by the Council on the berth 4/5 project at Ramsgate Port. This to include all related expenditure such as compensation paid to Brett Aggregates for being without a berth for a long period of time, any other compensations paid to Brett or any other individual or organization related to the Berth 4/5 project. The payment of any professional and legal fees etc. 2) the information requested above to be set out in an MS Excel spread sheet on an item-by-item basis including total costs for each item and a grand total to the date indicated above. Please also tell me if the council is liable to pay any more money for the completion of the Berth 4/5 project. If so, please set out estimations of these costs in an MS Excel spread sheet as described above. I draw your attention to the East Audit Partnership’s investigation into the management of the Berth 4/5 project which drew attention to the lack of transparency surrounding this major publicly funded development and the need for the Council to be more open and accountable.”.

[7]The Council responded on 3 May 2024. It refused to provide the Requested Information, citing section 22 (information intended for future publication). The Council stated that it “is still in the process of finalising the cost of the project and collating this information centrally with the intention of disclosure in due course.”. The Council acknowledged that there were public interest factors in favour of disclosure of the Requested Information but considered that it is “reasonable to withhold [it] prior to publication as to avoid misinterpretation or misinformation about monies spent and for what purpose.”.

[8]The Appellant contacted the Council on 29 May 2024, requesting an internal review and seeking further details regarding the intended publication of the Requested Information.

[9]The Council responded on 21 August 2024, upholding its position in respect of section 22. The Council stated its intention to publish a Cabinet report providing details of the Project, including detailed budget and spend information, “when the final account has been concluded”.

[10]The Appellant complained to the Commissioner on 9 September 2024 about the Council’s response to the Request.

[11]During the course of the Commissioner’s investigation, the Council considered that the Request should be considered under the EIRs (rather than FOIA). Accordingly, the Council then sought to rely on regulation 12(4)(d) to withhold the Requested Information. On 11 February 2025, the Council communicated its change in position to the Appellant.

[12]The Commissioner subsequently issued the Decision Notice.

The Decision Notice

[13]In the Decision Notice, the Commissioner determined (in summary) that:a. the Requested Information comprised ‘environmental information’ and accordingly the EIRs applied;

b. as at the date of the Request, the Requested Information could be categorised as information relating to material in the course of completion (namely, the full and final costings for the Project on completion);

c. regulation 12(4)(d) was therefore engaged; and

d. the Public Interest Test favoured maintaining the exception.

[14]The Commissioner accordingly concluded that the Council was entitled to rely on regulation 12(4)(d) to withhold the Requested Information.

[15]The Decision Notice did not require the Council to take any further steps.

The appeal

[16]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.

[17]For the reasons we have given in paragraph 44, this was therefore an appeal against the Decision Notice pursuant to the EIRs, in accordance with section 57 as applied by regulation 18.

The grounds of appeal

[18]The Appellant disputed the Commissioner’s findings in the Decision Notice. The Appellant’s grounds of appeal related to four issues which, in summary, were:a. the Commissioner was wrong to accept the Council’s late decision to change its response to the Request from FOIA to the EIRs, as the change avoided the disclosure of the Requested Information by switching to a more restrictive exemption (we refer to this below as “Ground 1”);

b. switching from FOIA to the EIRs also allowed for the consideration of information and events which occurred after the Request (we refer to this below as “Ground 2”);

c. the Commissioner did not give fair and proper consideration to material related to the Request which was already in the public domain (we refer to this below as “Ground 3”); and

d. the Commissioner did not give fair and proper consideration to public interest arguments in favour of disclosing the Requested Information (we refer to this below as “Ground 4”).

[19]We comment below on the material aspects of the Appellant’s grounds of appeal and his subsequent written and oral submissions.

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 and the Appellant joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. There were no interruptions of note during the hearing.

[23]The Commissioner did not attend the hearing and was not represented (having previously indicated that he would be content to rely on the Decision Notice and his written submissions if there was an oral hearing).

The evidence and submissions

[24]The Tribunal read and took account of an open bundle of evidence and pleadings, as well as separate written submissions from the Commissioner (sent with a covering email to the Tribunal on 12 September 2025) and submissions from the Appellant during the hearing.

[25]All of the above were taken into account, even if not directly referred to in this decision. The relevant statutory framework General principles

The relevant statutory framework

[26]The EIRs provide individuals with a general right of access to environmental information held by public authorities, subject to some exceptions. Regulation 5(1) provides: “…a public authority that holds environmental information shall make it available on request.”.

[27]The term ‘environmental information’ is defined in regulation 2(1) which, so far as is material, states: “…any information in written, visual, aural, electronic or any other material form on—(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements…”.

[28]The definition of ‘environmental information’ is to be given a broad meaning in accordance with the purpose of the underlying European Council Directive which the EIRs implement (Direction 2004/4/EC). See the Court of Justice of the European Union in

Case C-316/01

Glawischnig v Bundesminister fur soziale Sicherheit und Generationen

[2003] All ER (D) 145

and the case of Council for Business, Energy and Industrial Strategy v Henney and Information Commissioner

[2017] EWCA Civ 8444

[29]Therefore, pursuant to regulation 5(1), a person who has made a request to a public authority for ‘environmental information’ is entitled to have that information made available to them, if it is held by the public authority. However, that entitlement is subject to the other provisions of the EIRs, including some exceptions and qualifications which may apply even if the requested environmental information is held by the public authority. The opening wording of regulation 5(1) (that is, the wording immediately preceding the extract of that regulation quoted above) provides: “Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations…”.

[30]Part 3 of the EIRs contains various exceptions to the Duty to Disclose. 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.

[31]In order for some exceptions to the Duty to Disclose to be engaged, there must be some prejudice to the matters referred to in the specific exceptions. These are known as ‘prejudice-based’ exceptions. Other exceptions apply only to a particular category or class of environmental information, which are known as ‘class-based’ exceptions.

[32]Requests 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(4)(d)

[33]As noted, Part 3 of the EIRs contains various exceptions to the Duty to Disclose. Within Part 3 of the EIRs, regulation 12(4)(d) is applicable for the purposes of the appeal.

[34]So far as is relevant, regulation 12 provides: “(1) … 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— … (d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data…”.

[35]Regulation 12(4)(d) is a class-based exception. This means that it is engaged if the information in question falls within its scope; it is not necessary to show that disclosure would have any particular adverse effect in order to engage the exception.

[36]In summary, therefore, for the purposes of the appeal: a public authority may refuse to disclose environmental information which is requested if:a. the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; and

b. in all the circumstances, the Public Interest Test favours withholding the information.

Regulation 12(2)

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

[38]Case law has established that this presumption serves two purposes:a. to provide the default position in the event that interests are equally balanced following the application of the Public Interest Test; and

b. to inform any decision that may be taken under the EIRs in relation to the disclosure (or non-disclosure) of environmental information. Discussion and findings Preliminary points

Discussion and findings

[39]An issue which we needed to determine was whether a stay of proceedings was required in respect of the appeal, in light of the O’Hanlon case (see paragraph 67). We concluded that a stay was not necessary, for the reasons we refer to below in respect of Ground 2.

The scope of the appeal

[40]Given our remit set out in paragraph 20 (and summarised in paragraph 21), the primary issue which we needed to determine was whether the Commissioner was correct in concluding, in the Decision Notice, that the Council could rely on regulation 12(4)(d) to withhold the Requested Information.

[41]Accordingly, whilst we refer below to the Appellant’s grounds of appeal for consistency and completeness, our decision also addresses the fundamental questions of whether the Commissioner was correct to conclude, in the Decision Notice:a. that the EIRs (rather than FOIA) applied to the Request;

b. (if so) that the exception in regulation 12(4)(d) was engaged in respect of the Request; and

c. (if so) that the Public Interest Test favoured maintaining that exception.

Application of the EIRs

[42]We start by addressing whether the EIRs applied to the Request, as this is relevant to aspects of the Appellant’s grounds of appeal and subsequent submissions. It is also important to ensure that the correct regime (FOIA or the EIRs) is identified, for the purposes of our remit in considering the lawfulness of the Decision Notice (and our consideration of the issues in the appeal generally).

[43]During the Commissioner’s investigation, the Council submitted that the Requested Information was ‘environmental information’ for the purposes of regulation 2(1) on the basis that the Requested Information: “relates to costs for replacing a berth that consists of a floating pontoon structure held in place by steel piles with a hinged gangway and providing access whilst accommodating tidal movement. The new Berth 4/5 is longer and wider than the previous 70m long berth. We would regard the costs to be environmental as this upgrading programme, plans and activity would affect the water and Port landscape by commercial and industrial use of the berth.”.

[44]We find that the EIRs do apply to the Request. The Requested Information fundamentally relates to information regarding the Project. The Appellant did not dispute that the Project entailed the works as described by the Council in the preceding paragraph. We therefore find that the Requested Information relates to measures such as plans, programmes, agreements and activities affecting or likely to affect the elements of the environment (in each case, as referred to in regulation 2(1), set out in paragraph 27). Also, as we noted in paragraph 28, the definition of ‘environmental information’ is to be given a broad meaning.

[45]Consequently, we find that the Decision Notice was correct to conclude that the Request sought ‘environmental information’ for the purposes of the definition of ‘environmental information’ in regulation 2(1).

[46]For convenience, we use the term “information” below to refer (where the context permits) to environmental information within the scope of the EIRs.

The nature of the Request

[47]We also make the following findings in respect of the Request (which are relevant for the purposes of our discussions below).

[48]We find that the Request sought the following two distinct categories of information:a. the total amount of money already spent by the Council on the Project – we refer to this below as “Part 1 of the Request”; and

b. the amount of any further sums which the Council was liable to pay in respect of the Project – we refer to this below as “Part 2 of the Request”.

[49]Given that Part 1 of the Request referred to the amount of money “spent” and amounts “paid”, we interpret Part 1 of the Request as seeking to know the amount of money which, essentially, had gone out of the Council’s bank account. This is in contrast to invoices which the Council may have received in connection with the Project or amounts accrued in anticipation of potential future expenditure, because these may not be final or may be subject to dispute (for example, receipt of an invoice does not necessarily represent an agreed amount due to be paid).

[50]As Part 2 of the Request was asking if the Council was liable to pay any more money for the completion of the Project, and it referred to “estimations” of those costs, we interpret Part 2 of the Request as seeking to know the details of any further sums which the Council was liable to pay in the future in respect of the Project (namely, beyond the amounts already actual spent by the Council, as covered by Part 1 of the Request).

[51]The opening line of the Request specifically sought information “as of the date of the receipt” of the Request. We consider that the wording of the Request should be read plainly, based on its express terms. It clearly sought the Requested Information as of the date of receipt of the Request. The Request was sent by email and we find that it was therefore ‘received’ by the Council on the date it was sent (31 March 2024). Accordingly, we find that the Request was seeking the Requested Information as matters stood on 31 March 2024.

[52]We therefore find that:a. Part 1 of the Request was seeking the total amount of money actually spent by the Council on the Project, as at 31 March 2024; and

b. Part 2 of the Request was seeking the amount of any further sums which the Council was liable to pay in respect of the Project after 31 March 2024.

Ground 1

[53]As we have noted, during the course of the Commissioner’s investigation, the Council considered that the Request should be considered under the EIRs (rather than FOIA). The Appellant contended that the Commissioner was wrong to accept the Council’s late reliance on the EIRs (instead of FOIA), on the basis that the EIRs contained a “more restrictive” exemption which therefore avoided the disclosure of the Requested Information.

[54]As we have noted, our remit relates only to the Decision Notice. Consequently, it is not within our power to determine matters relating to previous decisions or responses of the Council in respect of the Request. It is the lawfulness of the Decision Notice which is applicable for the purposes of the appeal and, as we have also noted, the Decision Notice correctly concluded that the EIRs applied to the Request.

[55]Moreover, case law has established that a public authority is subsequently entitled to rely on new exemptions which have not been raised earlier by it, even being entitled to raise new exemptions at the stage of an appeal before the First-tier Tribunal. This is so even if those exemptions were not raised by the public authority in its response to a request for information under FOIA or the EIRs, any subsequent internal review of that response or in its dealings with the Commissioner when the Commissioner is investigating a complaint relating to that request. Accordingly, it was lawful for the Council to rely on new exceptions under the EIRs during the course of the Commissioner’s investigation prior to the issue of the Decision Notice.

[56]For the same reasons, we do not accept the Appellant’s argument that it was wrong of the Commissioner to allow the Council to change its response to the Request from FOIA to the EIRs on the basis that the EIRs had a “more restrictive” exemption. There was no error in law in the Decision Notice in respect of allowing the Council to rely on exceptions under the EIRs.

[57]Additionally, the Commissioner (as he pointed out in his response to the appeal) made no finding on section 22 in the Decision Notice. It was regulation 12(4)(d) which the Council relied on and which the Commissioner concluded in the Decision Notice was engaged in respect of the Request. Accordingly, regulation 12(4)(d) was the exception which was applicable for the purposes of the Decision Notice and therefore applicable for the scope of the appeal (and not section 22).

Ground 2

[58]Ground 2 was the Appellant’s contention that switching from FOIA to the EIRs also allowed for the consideration of information and events which occurred after the Request. Essentially, the Appellant argued that the Commissioner had wrongfully considered information and events from the date of the Request to the point of the Council’s reconsideration of the Request under the EIRs.

[59]The Commissioner disputed that, stating that he considered the circumstances as they existed at the date of the Request and that this was reflected in paragraphs 9 and 14 of the Decision Notice. We agree with the Commissioner that the Decision Notice clearly referred to the position as at the date of the Request.

[60]The Commissioner also submitted that case law had established (citing the Montague case, amongst others) that the time at which to consider the Public Interest Test is the date of a public authority’s response to a request (or, if it responded late, 20 working days after the date of receipt of the Request, in accordance with regulation 5(2)). In his response to the appeal, the Commissioner stated that the relevant date in this case was 30 April 2024 (being 20 working days following the Council’s receipt of the Request, as 1 April 2024 was a bank holiday) – this was on the basis that the Council responded late to the Request (on 3 May 2024).

[61]The Appellant argued that the relevant date for the purposes of the Public Interest Test was 11 February 2025, because that was the date of the Council’s communication treating the Request as subject to the EIRs (as referred to in paragraph 11). The Appellant considered that this should be treated as the date of the Council’s initial refusal of the Request under the EIRs regime. In this regard, the Appellant also relied on the Montague case, on the basis that it stated At paragraph 5. that the timing of the Public Interest Test: “…is to be judged at the time the public authority makes its decision on the request which has been made to it and that decision making time does not include any later decision made by the public authority reviewing a refusal decision it has made on the request.”.

[62]The Appellant therefore contended that consideration of the Public Interest Test would mean taking into account all relevant public interest matters prior to 11 February 2025.

[63]We consider that there is some inconsistency in the Appellant’s arguments, in that he argued that the Commissioner had wrongfully considered information and events up to the point of the Council’s reconsideration of the Request under the EIRs (on 11 February 2025), whilst also arguing that the Public Interest Test should include matters prior to that date. However, we consider that such inconsistency is not material given our comments below.

[64]For completeness, we do not accept the Appellant’s assertion that the Commissioner considered information and events from the date of the Request (31 March 2024) to the point of the Council’s reconsideration of the Request under the EIRs (11 February 2025), for the reasons given in paragraph 59. We therefore reject the Appellant’s arguments that switching from FOIA to the EIRs meant that the Commissioner had wrongfully considered information and events occurring after the date of the Request.

[65]Prior to the hearing of the appeal, the Upper Tribunal issued its decision in the O’Hanlon case. In summary (so far as is relevant for current purposes), the O’Hanlon case decided that the correct time for considering both the application (or engagement) of exceptions under the EIRs and the associated Public Interest Test was the time at which the public authority concluded its internal review of a request under regulation 11 (where such an internal review was undertaken).

[66]In his separate written submissions (referred to in paragraph 24), the Commissioner stated that he was seeking permission to appeal the Upper Tribunal’s decision in the O’Hanlon case, but that that decision was currently binding on the Tribunal. Accordingly, the Commissioner stated that (in contrast to his position in his response to the appeal, set out in paragraph 60) the relevant date in this case was 11 February 2025, being the date when the Council first notified the Appellant of its reliance on the exception in regulation 12(4)(d), as opposed to handling the Request under FOIA.

[67]Essentially, therefore, both the Commissioner and the Appellant considered that the relevant date was 11 February 2025. However, the Commissioner stated that the Decision Notice was based on the Commissioner’s understanding of the law prior to the Upper Tribunal’s decision in the O’Hanlon case and that consequently he did not investigate the position as at 11 February 2025. The Commissioner accordingly invited the Tribunal to stay the proceedings in the appeal pending the determination of his application to appeal the O’Hanlon case (and potentially until the Court of Appeal had made a decision, should permission to appeal be granted). The Commissioner’s suggestion of a stay was premised on whether the Tribunal would potentially form the view that considering the engagement of regulation 12(4)(d) and the application of the Public Interest Test as matters stood at 11 February 2025 would make any material difference to the outcome of the appeal (as opposed to considering the position at 30 April 2024, as previously suggested by the Commissioner).

[68]We concluded that it would make no material difference to the outcome of the appeal whether the relevant date was 30 April 2024 or 11 February 2025 (and accordingly that a stay of proceedings was not required), for the following reasons.

[69]As we have set out, Part 1 of the Request was seeking the total amount of money actually spent by the Council on the Project, as at 31 March 2024. Essentially, that is the ‘threshold’ date in respect of the Part 1 Information. Consequently, we find that it would make no difference whether the engagement of regulation 12(4)(d) was considered as at either 30 April 2024 or 11 February 2025. This is because, regardless of which of those dates was used, Part 1 of the Request would still relate to the total amount of money actually spent by the Council on the Project as at 31 March 2024.

[70]Likewise, given our finding that Part 2 of the Request was seeking the amount of any further sums which the Council was liable to pay in respect of the Project after 31 March 2024, it would make no difference in respect of Part 2 of the Request whether the engagement of regulation 12(4)(d) was considered as at either 30 April 2024 or 11 February 2025. Again, this is because (regardless of which of those dates was used), Part 2 of the Request would still relate to the amount of any further sums which the Council was liable to pay in respect of the Project after 31 March 2024.

[71]Regarding the Public Interest Test, we find that this is not applicable in respect of Part 1 of the Request, for the reasons we set out below. In respect of Part 2 of the Request, we conclude that any assessment of the Public Interest Test would not be affected whether it was considered as at 30 April 2024 or 11 February 2025, also for the reasons given below.

[72]In summary, for the reasons we have given, we find that it was immaterial whether the engagement of regulation 12(4)(d) in respect of the Request, or the application of the associated Public Interest Test, was considered as at either 30 April 2024 or 11 February 2025.

Ground 3

[73]Ground 3 was the Appellant’s assertion that the Commissioner did not give fair and proper consideration to material which was already in the public domain related to the Request.

[74]The Appellant’s arguments in respect of Ground 3 related to two issues – the engagement of regulation 12(4)(d) and the application of the associated Public Interest Test. We address these issues, respectively, under separate headings below.

Ground 4

[75]In Ground 4, the Appellant argued that the Commissioner did not give fair and proper consideration to public interest arguments in favour of disclosing the Requested Information. Ground 4 therefore related to the Public Interest Test, which (as noted in the preceding paragraph) we address below.

Whether the exception in regulation 12(4)(d) was engaged in respect of the Request

(d) was engaged in respect of the Request

[76]The Appellant argued, in respect of Ground 3, that (in summary) the Council had previously released information to him which was the same as the Requested Information. The Appellant referred to similar previous requests for information which had been made by him to the Council, regarding previous financial periods. The Appellant stated that he had submitted annual information requests to the Council in respect of the income and expenditure relating to the Port, which he used to write and publish articles about the annual financial performance of the Port, including year on year comparator tables. The Appellant explained that, in respect of such similar previous requests, the information had been disclosed to him by the Council.

[77]The Appellant’s position was that, as the same/similar information had been requested and disclosed previously (including in respect of capital expenditure on the Project), there was no basis for refusing to disclose the Requested Information in this instance.

[78]Whilst we acknowledge the Appellant’s point, we should reiterate that the scope of our jurisdiction relates to the lawfulness of the Decision Notice. The Decision Notice itself relates to the specific Request and not any other requests for information. Accordingly, our remit is to consider the lawfulness of the Decision Notice in respect of the Commissioner’s findings regarding only the Request. Consequently, any previous disclosure of information by the Council in respect of other requests is not a relevant factor for us to take into account in considering whether regulation 12(4)(d) is engaged.

[79]Moreover, any previous disclosure of information by a public authority (whether or not in respect of a request made under FOIA or the EIRs) does not set a precedent meaning that similar information must be disclosed in the future. In other words, any such disclosure does not preclude a public authority from seeking to rely on exemptions or exceptions for disclosure of information under FOIA or the EIRs, even if it has disclosed similar information previously. When considering whether a public authority can rely on any exemptions or exceptions for disclosure of information, each request must be considered and determined on its own merits, in respect of the specific relevant circumstances.

[80]For the same reasons, any conclusions in a previous decision notice issued by the Commissioner as to whether or not a public authority could rely on any particular exemptions or exceptions regarding a request for similar information would not normally be material to the Tribunal’s considerations when determining an appeal brought before it.

[81]In this case, we consider that it is immaterial whether or not the Council disclosed similar information to the Appellant previously. The relevant question before us was whether the Commissioner was correct to conclude that regulation 12(4)(d) was engaged in respect of the Request (irrespective of any previous disclosure by the Council of similar information for other financial periods).

[82]We find that regulation 12(4)(d) was not engaged in respect of Part 1 of the Request. This is because, as we have noted, Part 1 of the Request was essentially seeking to know how much money had gone out of the Council’s bank account in respect of the Project, as at 31 March 2024. It is self-evident that this cannot comprise material which is still in the course of completion or is incomplete data and that, on the balance of probabilities, the Council must hold such information.

[83]We therefore do not accept the Commissioner’s argument, insofar as Part 1 of the Request is concerned, that he was entitled to accept the Council’s submissions that the itemised costs and total costs of the Project were still being collected and modified subject to agreement with suppliers. Similarly, we disagree with the Commissioner’s view that the Part 1 Information relates to the costings for the Project that are ongoing and costs that the Council was still actively seeking to agree with others.

[84]In contrast, however, we consider that the Commissioner’s position outlined in the preceding paragraph was correct in respect of Part 2 of the Request. As we have noted, whereas Part 1 of the Request was seeking the total amount of money actually spent on the Project as at 31 March 2024, Part 2 of the Request was seeking the amount of any further sums which the Council was liable to pay in respect of the Project after that date.

[85]Consequently, because Part 2 of the Request was seeking the amount of any further sums which the Council was liable to pay in respect of the Project after 31 March 2024, we consider that the Commissioner was correct to consider that the Part 2 Information comprised material or information in the course of completion or incomplete data.

[86]It is evident from the Council’s response to the Request that further amounts were due to be paid relating to the Project. In that regard, Part 2 of the Request was therefore partially responded to. However, the Council clearly stated that it was still in the process of finalising the costs of the Project. As recorded in the Decision Notice, the Council also explained to the Commissioner, during the course of his investigation, that because the costs were still being finalised, it did not know the full amount due to be spent. The Council also explained that it was working with its suppliers to agree the final cost figures (stating that it was also “still under contract” with some suppliers).

[87]We therefore find that the Part 2 Information related to amounts which would not be known or final and consequently comprised material or information in the course of completion or incomplete data. We consider that this is so, even though Part 2 of the Request referred to “estimations” of costs, for the following two reasons. First, we find that it may not have been practicable for the Council to provide estimations, given that the relevant information was subject to agreement and, as we referred to, may therefore be subject to dispute (but also see our comments below regarding the Public Interest Test). Secondly (and more importantly), Part 2 of the Request sought details of the estimations to be provided in the same manner as set out in Part 1 of the Request. As Part 1 of the Request asked for the information to be provided in an Excel spreadsheet on an “item-by-item basis”, we find that the Council was not in a position to provide that detail of information (again, given that details of costings were still subject to agreement with the Council’s suppliers).

[88]We would note, incidentally, that the Council also stated to the Commissioner during his investigation that it considered that the Requested Information “does not relate to estimated figures”. We consider that view to be mistaken, given that Part 2 of the Request did seek ‘estimations’ of the future costs, but we consider the Council’s mistaken view to be immaterial (as the Council would be unable to provide the requested ‘estimations’ anyway, for the reasons referred to in the preceding paragraph).

[89]In respect of the points above regarding the date of the Council’s communication to the Appellant on 11 February 2025, we also find that the Part 2 Information was in the course of completion or incomplete as at that date. This is because the Council confirmed that the position was unchanged in its communication to the Appellant on that date. That communication reiterated that the Council was still under contract with suppliers and that the future/final costs of the Project were still unknown and subject to agreement.

[90]In summary, tor the reasons we have given, we find that regulation 12(4)(d) was not engaged in respect of Part 1 of the Request, but was engaged in in respect of Part 2 of the Request.

(d) in respect of the Part 2 Information

[91]As we have noted, the Appellant challenged the findings of the Decision Notice in respect of the Public Interest Test. In summary, the Appellant considered (as referred to in Ground 4) that the Commissioner did not give fair and proper consideration to public interest arguments in favour of disclosing the Requested Information.

[92]Given our finding that regulation 12(4)(d) was not engaged in respect of Part 1 of the Request, it follows that the Public Interest Test is not applicable to Part 1 of the Request.

[93]In respect of Part 2 of the Request, after taking into account the various factors for and against disclosure of the Requested Information, we conclude that the Public Interest Test favours maintaining the exception in regulation 12(4)(d).

[94]In summary, the material public interest factors favouring disclosure of the Part 2 Information which we took into account were:a. A public interest in transparency and scrutiny, including with regard to points raised by the Appellant that independent investigators had raised concerns about the Council’s lack of transparency and openness in relation to the Project, that the Council’s external auditors had highlighted inadequate governance arrangements and that its internal auditors had identified that there was a significant, but largely ignored, public interest in the Project.

b. A broad public interest regarding the activities and finances of the Port and the Project, particularly having regard to the amount of public money involved (the Appellant stated that the Port had made operational losses close to £30 million over an 11 year period and that the cost of the Project was unknown but likely to be in the region of at least £3 million to £4 million).

c. Environmental concerns and considerations regarding the Project, including issues raised by the Appellant regarding the impact of larger vessels visiting the Port and intensification of aggregate processing (in turn involving an alleged increase in vehicle and plant traffic and in atmospheric pollution).

[95]We also took into account, as part of our consideration of all the circumstances, the Council’s previous disclosure of other similar information in response to the other requests made by the Appellant. However, we considered (mainly for the reasons we have already referred to) that disclosure of similar information to the Appellant was not a material factor in the Public Interest Test favouring disclosure of the Part 2 Information.

[96]In summary, the material public interest factors against disclosure of the Part 2 Information which we took into account were:a. Potential damage to the Council’s relationship with its suppliers by disclosure of information which is incomplete, including the potential adverse impact on the Council’s position for any future tenders.

b. Undermining of the Council’s negotiating position with its suppliers regarding costs which are still subject to agreement – effectively, by removing or reducing its ability to dispute or negotiate costs by disclosing that the Council considers it may be liable to pay those costs.

c. Intended future publication of the Part 2 Information in due course (when it is known and finalised).

[97]We recognise that there is a strong public interest in transparency and scrutiny, and in respect of the activities and finances of the Port and the Project, particularly having regard to the sums involved. The Appellant also argued, on a related note, that because the Project aims to turn around the financial fortunes of the Port by attracting more trade, disclosure of the Part 2 Information would enhance the public interest in the financing and development of the Port. However, given that the Part 2 Information is incomplete, we consider that this militates against the view that disclosure of it would assist in the furtherance of those public interests.

[98]We also acknowledge that there is a general public interest in disclosing environmental information, having regard also to the environmental concerns raised by the Appellant. However, taking into account the nature of the Part 2 Information (which relates only to the potential costs involved in the Project), we likewise consider that disclosure of it would do little to further the public interest in the environmental issues.

[99]In contrast, we consider that substantial weight should be afforded, in particular, to the Council’s concerns regarding the negotiations with its suppliers. In our view, there is a real and significant risk that disclosing the Part 2 Information would be prejudicial to the Council’s negotiating position with its suppliers, given that the costs in question are still subject to agreement and that Part 2 of the Request was seeking an ‘item by item’ breakdown of the costs. This is because, if the Council was to disclose the Part 2 Information, we consider that that would indicate to the Council’s suppliers that the Council considers it may be liable to pay those costs.

[100]A relevant consideration in this regard is related to the concerns raised by the Appellant (and taken into account as a factor favouring disclosure of the Part 2 Information) in respect of the amount of public money spent on the Project. Given the concerns about the expenditure involved, we find that there is a very strong public interest in protecting the Council’s position in respect of future expenditure, in connection with its negotiations with its suppliers regarding costs which are subject to agreement.

[101]We also agree with the Commissioner’s view in the Decision Notice that there is public interest in the Council having the ‘safe space’ needed to discuss and reach decisions associated with the Project away from public scrutiny and distraction, especially when the Part 2 Information is not information in a final or agreed position. We are also mindful that, once the relevant information is agreed and finalised, there will be publication of it in due course.

[102]On balance, therefore, we find that the public interest factors favouring maintaining the exception in regulation 12(4)(d) outweigh the public interest in disclosing the Part 2 Information.

[103]Given our findings above, we consider that any assessment of the Public Interest Test in respect of the Part 2 Information would not be affected whether it was considered as at 30 April 2024 or 11 February 2025. Fundamentally, this is because the relevant public interest factors we have referred to would not be affected regardless of which of those dates was applied (which, in turn, is linked to our findings about the nature of the Requested Information).

Other matters – regulation 14(2) and regulation 11(4)

[104]As we have noted:a. the Request was dated 31 March 2024;

b. the Council only responded to the Request on 3 May 2024;

c. the Appellant contacted the Council on 29 May 2024 requesting an internal review;

d. the Council only responded with the outcome of its internal review on 21 August 2024; and

e. the Request should have been dealt with pursuant to the EIRs.

[105]Regulation14(2) places a duty on a public authority to issue a refusal notice explaining why it has refused a request for information no later than 20 working days after the date of receipt of the request for information.

[106]Pursuant to regulation 11(4), where a valid request for an internal review has been made, a public authority must notify the requestor of the outcome of its internal review no later than 40 working days after the date of receipt of the internal review request.

[107]The Commissioner did not address this in the Decision Notice but, given Council’s delay in responding to the Request and in providing the outcome of its internal review (and given that the Request should have been responded to under the EIRs rather than FOIA), we find that the Council breached regulation 14(2) and regulation 11(4).

Final conclusions

[108]For all of the reasons we have given, we find that:a. the Commissioner was wrong to conclude, in the Decision Notice, that regulation 12(4)(d) was engaged in respect of Part 1 of the Request; and

b. the Commissioner was correct to conclude, in the Decision Notice, that regulation 12(4)(d) was engaged in respect of Part 2 of the Request and that the Public Interest Test favoured maintaining that exception.

[109]We also find that the Decision Notice erred in not concluding that the Council had breached regulation 14(2) and regulation 11(4), although this is not material to our decision.

[110]We therefore allow the appeal in part and we make the Substituted Decision Notice as set out above. Signed: Stephen Roper Date: 17 April 2026 111. Judge of the First-tier Tribunal