Catherine Louise Holden v The Information Commissioner

Fundamentally, the Appellant’s appeal was based on the ground that the Commissioner did not have enough information upon which to judge the Request. The Appellant stated that she was appealing the Decision Notice on behalf of the Committee of which she was Vice Chair and had been a member for six years.

The grounds of appeal then laid out background information relating to the Request – the material points, in summary, being as follows:

The Appellant also stated that:

The Appellant also mentioned that there was reference in documents which had been provided in support of the appeal to issues relating to a defective patio wall. However, the Appellant stressed that it was the Requested Report (namely, relating to the car park) which was being sought, not any report relating to issues relating to the defective patio wall.

In respect of the outcome being sought by the Appellant in the appeal, the Appellant requested (in addition to production of the Requested Report) production of any evidence relating to the police advice, in respect of the alleged police ‘involvement’ referred to.

The Commissioner commented that the Appellant’s grounds of appeal provided some further context to the Request but nevertheless the Commissioner maintained the position set out in the Decision Notice – namely (in summary) that the Council could rely on regulation 12(5)(b) of the EIR in order to withhold the Requested Report.

The Commissioner relied on the reasons set out in the Decision Notice but made the following additional comments:

The Appellant did not submit a reply to the Commissioner’s response.

The powers of the Tribunal in determining this appeal are set out in section 58 of FOIA (Footnote: ¹ ) , as follows:

In summary, therefore, the Tribunal’s remit for the purposes of this appeal is to consider whether the Decision Notice was in accordance with the law, or whether any applicable exercise of discretion by the Commissioner in respect of the Decision Notice should have been exercised differently. 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.

Section 1(1) of FOIA provides individuals with a general right of access to information held by public authorities. It provides:

In essence, under section 1(1) of FOIA, a person who has requested information from a public authority (such as the Council) is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, these entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority. Section 1(2) of FOIA provides:

It is therefore important to note that section 1(1) of FOIA does not provide an unconditional right of access to any information which a public authority does hold. The right of access to information contained in that section is subject to certain other provisions of FOIA, which we address below.

One of the exemptions under FOIA relates to ‘environmental information’. Information which is within the scope of the EIR is exempt from disclosure under FOIA. Section 39(1) of FOIA (referring to the EIR as the ‘regulations’) provides:

Accordingly, requests for ‘environmental information’ held by a public authority must be dealt with under the EIR rather than FOIA.

Section 16 of FOIA relates to the duty of public authorities to provide reasonable advice and assistance to people who make requests for information. Section 16(1) of FOIA provides:

The EIR provides individuals with a general right of access to environmental information held by public authorities, subject to some exceptions. Regulation 5(1) of the EIR provides:

The term ‘environmental information’ is defined in regulation 2(1) of the EIR as follows:

Therefore, similar to the position under FOIA for other information, under regulation 5(1) of the EIR, 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 EIR, 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) of the EIR (that is, the wording immediately preceding the extract of that regulation quoted above) provides:

Part 3 of the EIR contains various exceptions to the duty to disclose environmental information which has been requested. Again, as with FOIA, it is therefore important to note that the EIR do not provide an unconditional right of access to any environmental information which a public authority does hold. The right of access to information contained in regulation 5(1) of the EIR is subject to certain other provisions of the EIR.

Regulation 9 of the EIR contains provisions which are similar to those in section 16 of FOIA relating to the duty of public authorities to provide reasonable advice and assistance. Regulation 9(1) of FOIA provides:

Section 2(2) of FOIA addresses potential exemptions to the duty to provide information pursuant to section 1(1)(b) of FOIA. Section 2(2) of FOIA provides:

The effect of the above is that some exemptions set out in Part II of FOIA are absolute and some are subject to the application of the FOIA Public Interest Test. Where an applicable exemption is not absolute and the FOIA Public Interest Test applies, this means that a public authority may only withhold requested information under that exemption if the public interest in doing so outweighs the public interest in its disclosure.

Section 2(3) of FOIA explicitly lists which exemptions in Part II of FOIA are absolute. Pursuant to that section, no other exemptions are absolute. For the purposes of this appeal, the relevant sections are sections 41, 42 and 43 of FOIA. Section 41 is included in that list but sections 42 and 43 are not.

Accordingly, in summary:

Section 41(1) of FOIA provides:

Section 42(1) of FOIA provides:

Section 43(2) of FOIA provides:

As noted, Part 3 of the EIR contains various exceptions to the duty to disclose environmental information which has been requested. Within Part 3 of the EIR, regulation 12(5)(b) (the course of justice) is applicable for the purposes of this appeal. So far as is relevant, regulation 12 of the EIR provides:

Putting this into other words, a public authority may refuse to disclose environmental information which is requested under the EIR:

We turn first to case law regarding the definition of ‘environmental information’ set out in regulation 2(1) of the EIR.

It is well established that ‘environmental information’ is to be given a broad meaning in accordance with the purpose of the underlying European Council Directive which the EIR implement (Direction 2004/4/EC). The definition was explained by the Court of Justice of the European Union in Case C-316/01 Glawischnig v Bundesminister fur soziale Sicherheit und Generationen (Footnote: ² ) as follows:

In the case of Department for Business, Energy and Industrial Strategy v Henney and Information Commissioner (Footnote: ³ ) , the Court of Appeal confirmed the appropriateness of a broad approach to defining environmental information, which may include information that is not directly connected to a measure. In that case, Lord Justice Beatson stated (Footnote: ⁴ ) :

Lord Justice Beatson also explained in the Henney case that identifying the measure which the disputed information is "on" includes applying the definition of ‘environmental information’ purposively. In essence, the Court of Appeal confirmed that determining whether, in a specific case, information qualifies as ‘environmental information’ (or, in other words, whether the information can be considered to be ‘on’ a given measure for the purposes of the definition of ‘environmental information’) should be decided by reference to the general principle that the EIR, Directive 2003/4/EC and the Aarhus Convention (which that Directive was designed to implement in EU law) must be construed purposively. In turn, this involves considering the purposes which they were trying to achieve. The Court of Appeal provided some general guidance, referring (Footnote: ⁵ ) to the recitals to the Aarhus Convention and the Directive as a starting point: “They refer to the requirement that citizens have access to information to enable them to participate in environmental decision-making more effectively, and the contribution of access to a greater awareness of environmental matters, and eventually, to a better environment. They give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure.”.

Therefore it is clearly established that the definition of ‘environmental information’ in the EIR should be construed purposively. Lord Justice Beatson also stated in the Henney case: “It is then necessary to consider whether the measure so identified has the requisite environmental impact for the purposes of regulation 2(1).”. He went on to state: “Determining on which side of the line information falls will be fact and context-specific.”. (Footnote: ⁶ )

We also remind ourselves, that, at paragraph 52 of his judgment in the Henney case, Lord Justice Beatson warned against an “overly expansive reading that sweeps in information which on no reasonable construction can be said to fall within the terms of the statutory definition.”.

In summary, therefore, a purposive interpretation is required when considering what ‘environmental information’ is, but this will also be dependent on the specific facts in any given case. The Upper Tribunal in Department for Transport and others v Information Commissioner and John Cieslik (Footnote: ⁷ ) put the point as follows: “…the principle established by the Court of Appeal in Henney and in Glawischnig [is] that information which has only a minimal connection with the environment is not environmental information. The principle must apply not only in deciding whether information is on an environmental matter but whether a measure or activity has the requisite environmental effect.”.

In very broad terms, there are six fundamental principles which derive from the Henney case:

As we have noted, the exception under section 41 of FOIA applies where (in essence) the relevant information was provided to a public authority by another person and there would be an actionable breach of confidence if that information was disclosed.

The starting point for assessing whether there is an actionable breach of confidence is the three-fold test established in the case of Coco v AN Clark (Engineers) Ltd (Footnote: ⁸ ) :

In respect of legal professional privilege, the House of Lords established, in the case of Three Rivers District Council and others (Respondents) v. Governor and Company of the Bank of England (Appellants) (Footnote: ⁹ ) , the relevant principles which must apply if legal professional privilege attaches to any particular material:

The exemption under section 43(2) of FOIA uses the terms ‘would’ and ‘would be likely to’ prejudice the commercial interests of any person. This means that the prejudice in question is more probable than not or that there is a real and significant risk of it happening.

The following statement from a First-tier Tribunal case was subsequently confirmed by the Court of Appeal in the case of Department for Work and Pensions v Information Commissioner & Frank Zola (Footnote: ¹⁰ ) as being the correct approach:

Therefore for such exemption to apply, there must be some causative link between the potential disclosure of the relevant information and the prejudice to the commercial interests of a person. The prejudice must also be real, actual or of substance and it must relate to the interests protected by the exemption.

The Tribunal read and took account of an open bundle of evidence and pleadings. The Tribunal also read and took account of a closed bundle. The closed bundle contained certain material which was not included in the open bundle, including a report which was withheld from disclosure (in respect of which we comment below), and contained some unredacted material which had been redacted in the open bundle.

We heard evidence from two witnesses on behalf of the Appellant in addition to a written witness statement provided by each of them which was included within the open bundle. To avoid identifying the witnesses personally in this decision, we refer to them just as “the first witness” and “the second witness”, respectively, and we mean no disrespect in doing so.

We also heard oral submissions from the Appellant. As noted, the Commissioner did not attend the hearing and was not represented.

Various points were addressed in the two witnesses’ written witness statements and by way of oral evidence during the hearing. Relevant material issues are referred to below.

The first witness’s evidence was given in their capacity as a retired Chartered Quantity Surveyor and Arbitrator but also as a past member of the Council (in the period 2015 to 2019). The first witness gave details of their extensive qualifications, which they stated had been retained despite their retirement.

The first witness gave some background information relating to the improvement project referred to in the Appellant’s grounds of appeal, explaining that the works were designed by a landscape consultant and that the first witness had administered the construction contract between the Council and the appointed contractor.

The first witness supported the Appellant’s arguments that certain individuals who took over the Council after the project had been completed had some personal dislike of previous members of the Council and had sought to discredit what had been achieved by pretending that the works were defective and unsatisfactory.

The first witness stated that the works were in fact used and enjoyed by the community and no significant problems or defects had come to light regarding the works. The only exception to that was relating to the brick walls and piers around a new patio area at the rear of the Parish Hall. It was discovered in March 2021 that they had become loose and unstable due to a latent problem with the mortar used, which had failed to withstand frost in the winter of 2020/2021, and consequently it was necessary to close the patio area. The first witness stated that the contractor had admitted liability for the problem with the patio walls and had agreed to rectify it free of charge.

The first witness further explained that, at around that time (March 2021), the Council had commissioned a structural report from a consultant which the Council published in the belief that it revealed serious deficiencies in the project works. The first witness considered that the report was unreliable for various reasons (which he explained).

The first witness considered that there were no other defects with the project works (apart from the patio walls issue), with nothing else coming to light since the project was completed in early 2019.

The first witness explained that the Council refused to allow the contractor to carry out their promised repairs to the patio walls. However, the first witness stated that the Council requested the contractor to address a number of other issues in relation to the patio works, which the first witness stated were unsubstantiated allegations relating to design and/or specification issues and which were not the responsibility of the contractor - and consequently the contractor had refused to deal with those other issues.

The first witness further explained that, as the contractor’s offer to repair the patio walls had not been taken up, the Parish Hall had been deprived of use of the patio that was paid for as part of the improvement project. He believed it was not fair or correct to deny access to the Requested Report.

The second witness’s evidence was given in their capacity as a retired resident in the parish of Hartlebury and as a past member of the Council (Parish Councillor from 2015 to 2019; Chair of the Council from 2017-2019). The second witness stated that, during the period that they were a member of the Council, they were the lead on the project which encompassed the improvement works referred to in the Appellant’s grounds of appeal.

The second witness referred to the costs of the project and the Requested Report, paid for by public money, and stated that they believed that it was in the public interest for the Requested Report to be disclosed, including for the interests of transparency.

Both witnesses referred to the litigation which had been cited by the Council in connection with its response to the Request. In essence, their collective view was that:

Whilst acknowledging all of the specific points which were made by the Appellant in the hearing, these generally related to the points made in the grounds of appeal and therefore we do not repeat them here.

We need to start by explaining that the report which the Council withheld from disclosure and which was included in the closed bundle provided to the Tribunal (and which was purportedly the Requested Report) was, in fact, a mortar sample analysis report. Based on the evidence available to us, we have concluded that this report related to the issue with the brickwork on the patio walls and piers, as referred to by the Appellant and the first witness (and not relating to the car park as envisaged by the Request), and that this was a report of an analysis of a mortar sample taken from the patio walls. We are satisfied that it is appropriate to state the nature of this report, notwithstanding that its contents are closed material, as it is critical to our findings in the appeal and to our ability to explain our reasons (and we consider there is no prejudice to any party, the Council or the author of the report in doing so). We also consider that the Council should have clarified this with the Appellant as part of its duties under regulation 9 of the EIR or section 16 of FOIA, which we discuss further below.

Given the fact that the mortar sample analysis report (which we shall refer to from this point as the “Withheld Report”) is what the Council specified as being the subject of the Request, our analysis and conclusions below are based on the Request (and the Council’s response to it, as well as the Decision Notice) as applicable to the Withheld Report. This is so notwithstanding that the Appellant stated that the Request related to a report relating to the Hartlebury Parish Hall car park.

The preliminary issue we needed to determine in the appeal was which regime (FOIA or the EIR) was applicable to the Request. The assessment of potential exemptions or exclusions (and in turn the application of applicable exemptions or exclusions) would then depend on the outcome of that determination.

If we concluded that the EIR applied to the Request (as was decided by the Commissioner in the Decision Notice) then we would need to determine:

If we concluded that FOIA applied to the Request then we would need to determine:

As we have noted:

Whilst we remind ourselves of the six fundamental principles from the Henney case as outlined in paragraph 54, particular points merit specific mention for current purposes. First, we note that the that the EIR must be interpreted purposively and the focus should be on the statutory language. However, we also note that the term ‘environmental information’ must be read broadly and the wider context may need to be considered.

We have concluded that the Withheld Report does not constitute environmental information for the purposes of the EIR. This is for the following reasons:

As we have concluded that the Withheld Report does not constitute environmental information then evidently the EIR cannot apply to the Request.

As we concluded that the EIR do not apply to the Request, it follows that the exception in regulation 12(5)(b) of the EIR does not apply and we do not need to consider the potential application of any other exceptions in the EIR.

Given our conclusion that the EIR do not apply to the Request, we have considered any possible exemptions to disclosure under FOIA.

We first considered the exemption under section 42 of FOIA (legal professional privilege), as this was relied on by the Council when refusing to disclose information in response to the Request. This exemption is clearly not applicable, as the Withheld Report (relating to analysis of mortar samples) was not prepared by a qualified lawyer nor for the purposes of obtaining or providing legal advice. It therefore cannot fall within the scope of that section (as per the Three Rivers case).

We then considered other possible exemptions and we concluded that the exemptions in sections 41 and 43 of FOIA could potentially be applicable to the Request.

As noted, section 41 relates to information which has been provided in confidence. The Withheld Report stated that it was personal to the client (the Council) and was confidential. We had no further evidence before us relating to the confidential nature of the Withheld Report or the expectations of the author of the Withheld Report. However, based on the information before us, we concluded on the balance of probabilities that the Withheld Report was prepared with an expectation of privacy and confidentiality such that disclosure of it would be actionable for breach of confidence.

We formed that view partly because there was information in the public domain relating to the cost of the Withheld Report (which was referred to in the Request). Accordingly, if the Withheld Report was disclosed then this would divulge details of what work (set out in the Withheld Report) was undertaken for the publicised cost. We considered that this could be damaging to the interests of the author of the Withheld Report (and was a reason why we also considered the potential application of section 43 of FOIA), not least because it could enable competitors to adjust their pricing for similar reports that they may be commissioned to undertake. In short, we considered that disclosure of it could give competitors a commercial advantage by knowing what was charged for the basis of the work detailed in the Withheld Report. In addition, as noted, the Withheld Report was marked as being for the personal use of the Council only and as being confidential. There was no evidence before us to refute any finding that the Withheld Report was confidential or could be disclosed without an actionable breach of confidence. For all of those reasons, we therefore concluded that there would be an expectation of confidentiality on the part of the author, breach of which would give rise to an actionable claim.

We recognise that if the Withheld Report was prepared for the purposes of potential litigation, it may become subject to disclosure requirements in connection with that litigation. However, as that is only a potential future possibility then this could not countermand our above conclusions.

Accordingly, we find that section 41(1) of FOIA was engaged in respect of the Request. As that exemption is an absolute exemption, the FOIA Public Interest Test does not apply. It follows that the Withheld Report is exempt from disclosure pursuant to that section.

Given our finding that the Withheld Report is exempt from disclosure, it is unnecessary for us to go on to consider the potential application of section 43 of FOIA.

As we have noted, the Appellant was seeking a report commissioned by the Council relating to the Parish Hall car park but the Withheld Report relates to a mortar sample analysis taken from the patio walls. It was clear from the Request that a report relating to the car park was being sought. The Council can have had no doubt that the Appellant was seeking information relating to the car park report and nothing else. If the Council had no such report then it should have stated so in its response to the Appellant, rather than responding by citing an exemption to disclosure (which, for the reason we have given, was evidently not applicable to the Withheld Report in any event).

Equally, if the Council considered that the Appellant may have been mistaken about the nature of the report which was the held by the Council then the Council should, pursuant to its duties under section 16 of FOIA, have sought to clarify the nature of the Request and/or provide a response which might help identify the specific information which the Appellant was seeking.

If the Council does not have a report relating to the Parish Hall car park (but only the Withheld Report) then, given that the Appellant was only seeking information relevant to the car park, then the entire process from the point of the Council’s response to the Request up to this appeal could have been avoided. Not only do we consider that the Council failed in its duty to provide advice and assistance relating to the Request but in our view it was remiss of the Commissioner to not address this point as part of his investigation and, consequently, the Decision Notice.

As we have stated, the Council determined that the Withheld Report was within the scope of the Request and accordingly that is the basis for our reasoning above in respect of the Request. However, we cannot preclude the possibility that there may be other information falling within the scope of the Request (namely, there may be a report relating specifically to the Parsh Hall car park) and, especially given the Council’s failure to provide advice and assistance as we have referred to, we consider that it is appropriate for the Council to make a fresh response to the Request.

As we have noted, the Appellant requested, in connection with her appeal, production of any evidence relating to the alleged police involvement which was mentioned. As any such information (whether or not it is held by the Council) did not form part of the Request, a separate request to the Council would need to be made relating to it and the Tribunal has no jurisdiction in respect of such information for the purposes of the appeal (the Tribunal’s remit being as outlined in paragraphs 25 and 26).

For all of the reasons we have given, we conclude as follows.

We find that the Commissioner erred in the exercise of his discretion and/or the Decision Notice involved an error of law in concluding that the EIR applied in respect of the Request and consequently that regulation 12(5)(b) of the EIR was engaged.

We find that section 41(1) of FOIA was engaged in respect of the Request insofar as the Withheld Report is concerned and accordingly that the Council is not required to disclose the Withheld Report.

The Council breached section 16 of FOIA by not providing reasonable advice and assistance in respect of the Request.

We therefore allow the appeal insofar as applicable to our determination summarised in paragraph 101 and we make the Substituted Decision Notice as set out above.