David Barton v The Information Commissioner & Anor

This is an appeal against the Commissioner’s decision notice IC-211087-C6C4 of161 February 2023 which held that Wigan Metropolitan Borough Council (‘the Council’) was entitled to rely on regulation 12(5)(f) of the Environmental Information Regulations 2004 (EIR).

The Commissioner did not require the Council to take any steps.

In 2013, the Council received a planning application (application A/13/77766), which sought permission for a temporary worker’s mobile home to be located on site at Rothwells Stud, Senicar Lane, Wigan, WN1 2SN (“Rothwells Stud”). This application was subsequently granted for a period of 3 years. The planning permission expired in December 2016.

A subsequent planning application was received in February 2017 (application A17/83640/FULL), which sought permission to build a permanent essential worker dwelling at Rothwells Stud. In support of this planning application, the Applicant submitted the profit and loss accounts for Rothwells Stud for the years 2015, 2016 and 2017. This application was granted in September 2017.

The Second Respondent then received a planning application in August 2022 (A/22/94184/FULL) in respect of the proposed development of four detached dwellings on Rothwell’s Stud. We understand that this planning application has been turned down but the appellant is concerned that the land ‘remains technically as developed land and thus open to future applications that will negatively impact on the Green Belt unless it can be shown that no business has ever existed on this site.’

This appeal concerns a request made on 18 September 2022:

“With respect to an active planning application - A/22/94184/FULL We request copies of the three year accounts submitted to the council in support of the 2017 planning application A/13/77766, for Rothwell's Stud farm, Sennicar Lane, Wigan, WN1 2SN.”

The Council replied on 1 November 2022 under the Freedom of Information Act 2000 (FOIA). The Council refused the request, relying on section 41 FOIA.

On internal review the Council decided that the appropriate regime for considering the request was the EIR. It upheld the decision to withhold the information under regulation 12(5)(e) and 12(5)(f) EIR.

In a decision notice dated 31 March 2022 the Commissioner decided that the Council had failed to demonstrate that regulation 12(5)(e) was engaged but that the Council correctly withheld the information under regulation 12(5)(f) EIR.

In relation to regulation 12(5)(e) the Commissioner was satisfied that the information was commercial in nature and was provided to the Council with an expectation of confidentiality but was not satisfied that the Council had shown confidentiality was required to protect a legitimate economic interest.

In relation to 12(5)(f) the Commissioner was satisfied that, given the nature of the information, its disclosure would adversely affect the interests of the applicant.

In relation to the public interest balance, the Commissioner concluded that the public’s right to challenge a planning application is not affected by the non-disclosure of the requested information. That right can be properly exercised during the formal planning process. Where there are concerns about the conduct of a public authority there are, similarly, other remedies for addressing this which do not necessitate the global disclosure of the information.

The Commissioner does not consider that it is the purpose of the EIR to circumvent existing procedures within planning law and the mechanisms for public scrutiny which already exist.

Whilst he acknowledged that facilitating public engagement with environmental issues is one of the general principles behind the EIR, he did not consider that, in this case, disclosure of the withheld information would assist in furthering this principle, at least not to the extent that any public benefit would outweigh the public interest in protecting the interests of the information provider.

He concluded that the public interest favoured withholding the information.

The grounds of appeal are:

The Commissioner invited the tribunal to join the second respondent to address the following points:

The Commissioner said that he would provide an update of his position (i.e. whether to continue to defend the DN and/or issue a fuller Rule 23 Response) upon receipt and review of that information. No update has been provided.

The Council submits that the EIR is the appropriate regime because the request relates to information submitted in support of planning application in respect of a building a dwelling and altering the landscape because it relates to measures affecting land.

The Second Respondent submits that the information in question is commercial in nature as it relates to a commercial activity, being the profit and loss accounts for Rothwells Stud.

The Second Respondent asserts that confidentiality is required by law in line with the common law of confidence. This is because the information is not trivial. Further, the information is not in the public domain and cannot be obtained via Companies House as it was prepared for the purposes of supporting planning application A/17/83640/FULL only. Additionally, at the time the information was shared with the Second Respondent, the provider stated on multiple occasions that it was supplied in support of the planning application only and should not be shared, explicitly imposing an obligation of confidentiality so as to protect a legitimate economic interest, being the financial state of the applicant’s business at Rothwells Stud. It is therefore clear that confidentiality would be adversely affected by disclosure.

In respect of the exception under regulation 12(5)(e), the Second Respondent submits there is a significant wider public interest in preserving the principle of confidentiality, so as to ensure public trust in the Second Respondent as the Local Planning Authority is maintained.

In respect of regulation 12(5)(f), it is the Second Respondent’s position that this exception is applicable to the information in question because the economic interests of the individual who provided it would be adversely affected if it were to be disclosed. The Second Respondent asserts that the disclosure of this information would not be in the spirit of the EIR as it would deter private persons from providing commercially sensitive information to the Second Respondent as the Local Planning Authority, because it would damage public trust.

The Second Respondent wishes to emphasise that the provider of this information stated on multiple occasions that it was supplied for the purpose of supporting the planning application only, and that it should not be shared. Further, there was no legal obligation for the Applicant to provide this information. Neither the national requirements nor the local requirements stipulate that accounts information must be provided to support a planning application, regardless of whether it is for temporary planning permission.

It is submitted that the information in question was submitted voluntarily, in confidence and without any legal obligation to do so. The Second Respondent asserts that it is not relevant whether the planning application would have been granted in the absence of the accounts information, as this is a hypothetical consideration and does not change the fact that there was no legal obligation for the Applicant to provide the information.

In the circumstances, the Second Respondent submits there is a significant public interest in maintaining the exception under regulation 12(5)(f), because disclosure would damage public trust in the Second Respondent and discourage others from sharing such confidential information in future.

The tribunal also took account of the Council’s submissions on whether it should be a party to the appeal.

We have taken account of the appellant’s reply and his ‘final comments’ sent by email dated 14 January 2024, to the extent that they are relevant to the issues we need to determine.

The EIR was originally enacted to apply the provisions of Directive 2003/4/EC of the European Parliament and the Council on public access to environmental information to England and Wales. The relevant parts of regulation 12 EIR are:

There is a presumption in favour of disclosure under the EIR under reg. 12(2). The result is that the threshold to justify non- disclosure is a high one.

‘Would adversely effect’ should be interpreted in the sense that the adverse effect has to be identified and the Tribunal must be satisfied that disclosure “would” have that adverse effect, not that it “could” or “might. (See Mersey Tunnel Users v ICO and Halton Borough Council EA/2009/0001). This must be assessed at the time of the original decision (not the internal review - Montague v Information Commissioner and DIT [2022] UKUT 104 (AAC) para 63).

Under reg. 12(5)(e), subject to the public interest test, a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. This has four elements:

In Elmbridge Borough Council v Gladedale Group Limited EA/2010/0106 in paragraphs 18-19 the Tribunal considered the approach to the third question above, namely whether confidentiality was to protect a legitimate economic interest and concluded that disclosure would have to adversely affect a legitimate economic interest of the person the confidentiality is designed to protect and that this requires consideration of the sensitivity of the information and the nature of any harm that would be caused by disclosure.

We are not bound by the tribunal’s approach in Elmbridge but we agree with and adopt its approach.

The Tribunal in Elmbridge accepted that the wording “where such confidentiality is provided to protect a legitimate economic interest” (as opposed to “was provided”) indicates that the confidentiality of this information must be objectively required at the time of the request in order to protect a relevant interest and that it is not enough that some harm might be caused by disclosure. It is necessary to establish (on the balance of probabilities) that some harm to the economic interest would be caused by disclosure.

Under regulation 12(5)(f), subject to the public interest test, a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the interests of the person who provided the information where that person was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority and did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it and has not consented to disclosure. This has four elements:

If the conditions of 12(5)(e) or (f) are met, the information must only be withheld to the extent that in all the circumstances the public interest in maintaining the exception outweighs the public interest in disclosure.

The issues we have to determine under regulation 12(5)(e) are:

The issues we have to determine under regulation 12(5)(f) are:

The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The Tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

It is not in dispute that the EIR is the appropriate regime, and that would have been our conclusion in any event on the basis that the request is for information submitted in support of a planning application in respect of building a dwelling and altering the landscape. This relates to measures affecting land.