James Packham v The Information Commissioner & Anor

As a general principle, requests for environmental information held by a public authority are usually to be dealt with under the EIR rather than FOIA. Section 39(1) of FOIA provides:

“Information is exempt information if the public authority holding it—

(a)

is obliged by environmental information regulations to make the information available to the public in accordance with the regulations, or

(b)

would be so obliged but for any exemption contained in the regulations.”.

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

“…any information in written, visual, aural, electronic or any other material form on—

(a)

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b)

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

(c)

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

(d)

reports on the implementation of environmental legislation;

(e)

cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f)

the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);”.

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

“…a public authority that holds environmental information shall make it available on request.”.

Accordingly, under regulation 5(1) of the EIR, a person who has made a request to a public authority (such as the Council) 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 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…”.

It is therefore important to note that regulation 5(1) of the EIR does 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 that regulation is subject to certain other provisions of the EIR. Part 3 of the EIR, referred to above, contains various exceptions to the duty to disclose environmental information which has been requested. Within Part 3 of the EIR, regulations 12 and 13 are applicable for the purposes of the appeal.

Regulation 12(4)(a) covers the position where a public authority does not hold the information which is requested, at the time of the request. So far as is relevant, regulation 12(4) of the EIR provides:

“…a public authority may refuse to disclose information to the extent that—

(a)

it does not hold that information when an applicant’s request is received…”.

So far as is relevant, regulation 11 of the EIR provides:

“(1)

…an applicant may make representations to a public authority in relation to the applicant’s request for environmental information if it appears to the applicant that the authority has failed to comply with a requirement of these Regulations in relation to the request.

(4)

A public authority shall notify the applicant of its decision… as soon as possible and no later than 40 working days after the date of receipt of the representations.”.

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 broad scope of 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: ¹).

In the case of Department for Business, Energy and Industrial Strategy v The Information Commissioner and Alex Henney (Footnote: ²), 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. It also established that the definition of ‘environmental information’ in the EIR should be construed purposively, but that this will also be dependent on the specific facts in any given case.

We turn now to case law relating to the question of whether information is held by a public authority for the purposes of the EIR. It is important to note that, notwithstanding regulation 5(1) of the EIR, it is not the role of either the Commissioner or the Tribunal to determine conclusively (or, in other words, with certainty) whether or not information is actually held by a public authority for the purposes of that regulation.

In the case of Bromley v Information Commissioner & the Environment Agency, the First-tier Tribunal (in a case relating to whether information was held by a public authority for the purposes of FOIA) held that: “the test to be applied [by the Commissioner and the Tribunal] was not certainty but the balance of probabilities”. (Footnote: ³)In simple terms, the ‘balance of probabilities’ means that something is more likely than not to be the case. The decision in the Bromley case is not binding on this Tribunal, but we note that this test has become established and a similar approach has been taken in numerous Tribunal decisions since. We see no reason to depart from that view.

Accordingly, in determining whether or not information is held on the balance of probabilities, a decision will be reached based on an assessment of the adequacy of the public authority’s search for the information and any other reasons explaining why the information is not held.

The Tribunal read and took account of an open bundle of evidence and pleadings. The Tribunal also read and took account of further submissions (referred to in paragraph 32) which were provided separately by the Council and the Appellant.

The fundamental issue which we needed to determine in the appeal was whether or not the Commissioner was correct to decide, by way of the Decision Notice, that on the balance of probabilities, the Council held no further relevant information relating to the Request.

As we have noted, the Decision Notice also concluded that the Council was in breach of regulation 11(4) of the EIR, as it did not provide its internal review decision within the statutory timeframe. We also address this point below, notwithstanding that it was not disputed by any parties (including the Council).

We first briefly address the issue of the application of the EIR (as opposed to FOIA) in respect of the Request, notwithstanding that the Appellant did not challenge the application of the EIR in connection with the Decision Notice. We cover this for completeness, given that the Council’s initial response to the Request was issued pursuant to FOIA rather than the EIR.

We consider that the Council (in its response to the Request following its internal review) and the Commissioner were correct to determine that the EIR applied in respect of the Requested Information. The Requested Information fundamentally related to records connected with planning permission and decisions taken in connection with the planning permission. Accordingly, we consider that it falls within limb (c) of the definition of ‘environmental information’ in regulation 2(1) of the EIR – namely, “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”. It is evident that the issue of planning permission itself, of course, relates to information ‘on’ the environment for the purposes of the definition of ‘environmental information’ in regulation 2(1) of the EIR. Likewise, other records relating to the planning permission and the Project are associated with that and, accordingly, we are satisfied that all of the Requested Information falls within the scope of the EIR.

As we have noted:

The starting point, however, is to ascertain what was actually requested in a request for information – or, in other words, what was within the scope of the request.

In our view, the Request was clearly seeking information relating to the wider planning process relating to the Project, leading up to the point at which a decision was taken to proceed with the planning application, including records relating to any analysis of applicable considerations at relevant stages of that process and how (including on what basis) that decision was reached. The Request may not have used the word ‘why’ the decision was taken (but rather ‘how’) but we consider it is clear what was intended.

We consider that the Council took a very narrow view of what was covered by the Request, rather than objectively assessing what the Request was actually asking for. Essentially, we believe that the Council worked on the basis of an erroneous ‘assumption’ as to what the Appellant was seeking, based on its own narrow interpretation of the Request, and responded accordingly. Moreover, the Council had a duty under regulation 9 of the EIR to provide reasonable advice and assistance to the Appellant in connection with the Request.

If anything, it could perhaps be said that the Request was written in terms which were too broad and, if so, it may have been appropriate for the Council (pursuant to its duties under regulation 9 of the EIR) to seek to ascertain the exact scope of the Request. What is clear, though, as we have stated, is that the Appellant was seeking information relating to the planning process and (amongst anything else which may be relevant) the records of any debate or consultation relating to the decision to proceed to planning permission (“how was the decision taken?”), as well as records relating to the decision-making itself (“who made the decision and where is the decision recorded?”). Also, as the Appellant pointed out in his reply to the Council’s response to the appeal, the question of ‘who’ could also be relevant to the wider background regarding ‘how’ the decision was taken.

We do not accept the position of the Commissioner and the Council that the Request was properly responded to by the Council providing the limited information which it did. This is because that response was, as we have noted, based on the Council’s overly-narrow interpretation of the Request and without seeking to clarify the scope of the Request with the Appellant. Likewise, we do not agree, as argued by the Commissioner, that the Council was correct not to disclose the further documents identified by the Council “which did not relate to the decision-making in particular”. It was evident from the Request that it was seeking more than that. As we have noted, we think this is clear from the last part of the wording in the Request on its own, but the additional background wording of the Request which preceded the specific questions in it provided some context which made the purpose of the Request even more clear. Moreover, the Appellant did, of course, provide some clarification as to what he was seeking in his email to the Council dated 28 September 2021, asking for an internal review of its response to the Request. In that email, the Appellant stated:

“If I have missed something please quote the passage in the minutes which does answer my FOI request. If you cannot do this and there is in fact some other documentation that answers my questions please supply that document or documents and, to save time, reference the specific text which does answer the questions.”.

The Council stated in its response to the appeal and in its final submissions that the Appellant could make another request for information if he required anything further. The Appellant had, though, already made it clear what he was asking for and, as quoted above, sought guidance from the Council regarding any other information which would be within the scope of the Request. Whilst the Appellant’s request for guidance was framed with specific reference to potentially relevant documents, it should have been clear to the Council that the Appellant was demonstrating that he may not know which information the Council may hold which would be relevant to the Request. It should also have been clear to the Council that the Appellant was seeking broader information regarding how the decision was reached, which would extend to information regarding ‘why’ the decision was reached. As accepted by the Council in its response to the appeal, the Council’s minutes provided to the Appellant do not explain why the Project was taken to planning. Even if the Appellant had not requested any guidance, the Council was nevertheless under had a duty under regulation 9 of the EIR to provide reasonable advice and assistance to the Appellant in connection with the Request.

We recognise that the Council, as a result of its internal review, did provide other information to the Appellant in response to the Request, but it did not otherwise address the issues raised by the Appellant. We consider that there were two aspects to this – the specific questions raised by the Appellant in the Request and the clarification/guidance sought by the Appellant in his request for a review of the Council’s response. As noted, we think that the scope of the Request was sufficiently clear in its own right - but even if the Council was unsure about what was being requested then it should have sought to clarify this with the Appellant. At the point of the Appellant’s request for a review, it should have been even more evident to the Council what the Appellant was seeking by way of the Request and, again, even if the Council was unsure at that point it should have sought to clarify this – particularly when the Appellant himself was specifically asking for assistance in respect of the Request. We also observe that the Council provided some background explanatory information in the course of the appeal, which it did not provide to the Appellant in connection with its handling of the Request and which may have been helpful to the Appellant.

For the above reasons, we therefore find that the Council was in breach of its duty to provide reasonable advice and assistance pursuant to regulation 9 of the EIR.

As a result of the Council’s narrow view of the Request, it determined (as stated in its response to the appeal) that “a wider search for documents was not necessary”. Given that, it is self-evident that insufficient searches were undertaken for other information which could fall within the scope of the Request. Indeed, the Council stated in its response to the appeal that it “holds various documents which shaped the process of the proposal, including documents relating to the consultation process”. For the reasons given, we consider that such records fall within the scope of the Request.

It follows from the above that we consider, on the balance of probabilities, that further information is held by the Council which falls within the scope of the Request.

We would also briefly note that we did not consider the document from 39 Essex Chambers to be material in the context of the appeal. This is because, whilst it may identify actions which the Council ought to have taken in connection with the Project (but, to be clear, we form no view on this either way), the appeal is not about the responsibilities or conduct of the Council in respect of the Project. We appreciate that that document may have some relevance to the records which the Council may potentially hold relating to the Project, but the material issue in the appeal was the scope of the Request itself.

As we have noted, regulation 11(4) of the EIR requires, in summary, a public authority to provide its internal review decision within 40 working days after the date of receipt a request for that review.

The Appellant notified the Council of his requirement for an internal review on 28 September 2021 and the Council responded on 3 December 2021. Accordingly, the Council did not comply with regulation 11(4) of the EIR as it did not provide its internal review decision within the statutory timeframe.

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

We find that the Commissioner was correct in deciding, by way of the Decision Notice, that the Council was in breach of regulation 11(4) of the EIR on the basis that it did not provide its internal review decision within the statutory timeframe. However, 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, on the balance of probabilities, no further information was held by the Council within the scope of the Request.

We also find that the Council breached regulation 9 of the EIR by failing to provide the Appellant with reasonable advice and assistance in connection with the Request.

We therefore allow the appeal and we make the Substituted Decision Notice as set out above.