James Mooney v The Information Commissioner

The Commissioner submits that whilst the appellant’s motivation for the request relates primarily to matters of public safety the information requested nonetheless relates to the updating of the Plan which is clearly a measure which will affect environmental elements and factors.

The Commissioner submits that the Council has explicitly stated in its timetable for updating the Plan that the initial consultation in Spring 2022 included a call for sites exercise, and that the next stage is for the Council to prepare a draft updated Plan, on which a consultation will then follow. Given the Council’s submissions, and the nature of the relevant statutory process and the need for further consultation and discussion before matters are finalised, the Commissioner remained satisfied that the updated Plan was not a finished document as it remained subject to discussion and consultation processes.

It was submitted that the Commissioner properly considered the public interest, and the presumption in favour of the disclosure of environmental information, but was correct to conclude that due to the timing of the request the Council was entitled to a safe space to consider the responses to the consultation and finalise its position. The Commissioner stated that it was unclear to the Commissioner why the Council could not at this juncture still amend any of its proposed plans in light of the consultation responses received, even if there would be a cost in doing so.

The Commissioner acknowledged the appellant’s concerns with regards to public safety and the impact on the local community, and the Commissioner recorded in the decision notice the significant public interest in understanding the impact which any plans would have on the local community.

The Commissioner remained satisfied that the public interest favoured withholding the requested information to enable the Council to have sufficient time and a safe space to fully consider all of its options and the responses to the consultation before finalising its proposals.

The Commissioner noted that should the Tribunal disagree with the Commissioner’s findings in respect of regulation 12(4)(d) EIR, the Council had also, during the course of handling this request, referred to reliance on regulations 12(4)(b) (manifestly unreasonable), 12(4)(e) (internal communications), 12(5)(b) (course of justice – legal privilege) and 12(5)(f) (the interests of the person who provided information) EIR. Whilst it was not necessary for the Commissioner to consider these exceptions given his findings, the Tribunal will need to do so if it concludes that regulation 12(4)(d) EIR is not engaged.

The tribunal has considered Mr. Mooney’s reply in full. His main arguments are as follows.

Mr. Mooney argues, in essence, that human rights instruments have the effect that the UK Government is responsible for ensuring that individuals or groups of individuals do not have their right to life or quality of life violated. He argues that it is necessary for the tribunal to address the hierarchy between the Human Rights Act 1998 (HRA), the Health and Safety (Enforcing Authority) Regulations 1998 and the FOIA.

He submits that FOIA is the relevant legislation because the information has been requested to determine if the Council has complied with its legal duties under Health and Safety legislation and the HRA. The information requested is specific to the legal obligations of the Council to protect the health, safety, wellbeing and quality of life of UK Citizens. The Council refuses to accept that it has such obligations.

Mr. Mooney submits the information relates to a decision by the Council to disregard a proposal for gravel extraction (MS290 approved by the Secretary of State in 2017 which had a plant an bagging site north of the A1175 road and replaced it within the 2022 ‘Updating of the Lincolnshire Minerals and Waste Local Plan’ with a site south of the A1175 road (SG17) in closed proximity to the village of West Deeping which the residents consider will have a major impact on their quality if life. Mr. Mooney submits that the decision violates health and safety legislation because it placed the quality of life of the residents at risk.

Mr. Mooney submits that the actions of the Council suggest that they have entered into an agreement with the developer to place the plant on the south side of the A1175 adjacent to West Deeping despite the risk to the quality of life of the West Deeping community in violation of its legal duties and that this is either illegal or will result in major contractual difficulties or financial liabilities to LCC. It is this information that the request relates to which must be provided in order that the West Deeping community can protect their quality of life through the legal system.

Mr. Mooney sets out what he submits are the legal obligations of a local authority to protect the life and quality of life of UK citizens.

Mr. Mooney submits that the correspondence demonstrates that the processes was suspended to stop the submission of an injunction and to avoid the Council having to concede the decisions they had made were illegal which could have resulted in the agreement with the Developer becoming public knowledge and highlighted major contractual difficulties or financial liabilities to the Council.

Mr. Mooney submits that the ‘Updating of the Lincolnshire Minerals and Waste Local Plan’ was complete and issued for consultation in November 2022. It is submitted that the publication presents a definitive decision by the Council. The Commissioner was wrong to conclude that the process was ongoing.

It is submitted that the information requested must be provided in order that the West Deeping community can determine why the Council has made the decisions they have which if the logical conclusions are correct enables the West Deeping community to seek redress to have the decisions revoked.

It is submitted that the safe space the Council needed was during the early stages of the process to consider the impact of their decision in terms of safety legislation and the Health and Safety (Enforcing Authority) Regulations and had they fulfilled that legal obligation before publishing the “Updating of the Lincolnshire Minerals and Waste Local Plan” then the request for the information would not have been necessary.

Mr. Mooney submits that the Council cannot amend its decision to replace MS29 with SG17 because to do so it would have to admit that its decision was a criminal act in breach of safety legislation and this would leave the Council open to legal challenge to legal challenge due to a breach of contract relating to the land agreement the Council entered into with the developer that has the potential to be either illegal or will result in major contractual difficulties or financial liabilities to the Council.

Regulation 2(1) of the EIR defines environmental information as information on: 

In BEIS v IC and Henney [2017] EWCA Civ 844 (‘Henney’) the Court of Appeal held that: 

The relevant parts of regulation 12 of EIR are:

Regulation 12(d) is engaged where the request relates to material which is still in the course of completion. The requested information itself does not have to be material in the course of completion.

‘Material’ must have a physical existence. It cannot be something that does not physically exist, like a project, an exercise, or a process. (Highways England v Information Commissioner and Manisty [2018] UKUT 423 AAC)

‘Relates to’ should be given its everyday meaning. The exception must be applied consistently with its context. The context is likely to include the following (Manisty):

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.

We read an open bundle of documents.

The tribunal has to determine the following issues:

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.

The Commissioner’s investigation and the decision notice considered the request as set out in three parts in the letter of 7 April 2023 and responded to on 11 May 2023. Mr. Mooney agreed with the Commissioner that this was the appropriate scope of the investigation. We are not considering the refined request that was set out in the request for an internal review.

Further, there is no challenge to the Commissioner’s conclusions that the information requested in part 3 of the request was, on the balance of probabilities, not held by the Council. We do not need to determine this issue, although it is clear to us on the basis of the material before us that the Commissioner reached the right decision in relation to part 3 of the request.

The tribunal, the Commissioner and the Council, as a public authority, have a duty, pursuant to section 3 of the HRA to interpret EIR or FOIA so far as is possible in a way that is compatible with the ECHR incorporated into domestic law by the HRA.

If a right under the ECHR is engaged, it is likely to be relevant to the question of whether or not an exception is engaged and to the public interest balance.

Mr. Mooney relies on the ‘right to life’ under Article 2 HRA. We do not accept that article 2 is engaged in a case where the potential impact on an individual’s life consists of asserted loss in value of properties, anxiety resulting in stress and mental health issues, a potential increase in road incidents on the A1175 and environmental safety risks resulting from mud being deposited on the A1175, noise pollution and light pollution.

Mr. Mooney has not raised Article 8 before this tribunal, although it is referred to in the bundle. We accept that Article 8 might be relevant in a case where there is reasonable and convincing evidence of a substantial threat to health and property or severe environmental pollution such as there was in Geurra v Italy 26 EHRR 357to residents from a factory producing polyamide which was classified as high risk according to 82/501/EEC which governs the major accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population (see R (Furness) v Environment Agency [2001] EWHC Admin 1058 [26] and R (Vetterlein) v Hampshire County Council and Hampshire Waste Ltd[2001] EWHC Admin 560 (

We do not accept that Article 8 is engaged in a case where the potential impact on an individual’s life consists of asserted, rather than evidenced, future loss in value of properties, anxiety resulting in stress and mental health issues, a potential increase in road incidents on the A1175 and environmental safety risks resulting from mud being deposited on the A1175, noise pollution and light pollution.

In conclusion we do not accept that there is before us reasonable and convincing evidence that the residents’ quality of life would be so directly affected by the proposal as to engage Article 8.

In any event, in our view, even if Article 8 were engaged it would not materially have affected our conclusions because the public interest balance already allows for appropriate weight to be given to the potential impact on the residents’ enjoyment of their homes.

Unlike human rights legislation there is no obligation on the tribunal to interpret the EIR or FOIA in a way which is compatible with health and safety legislation. However, the public interest balance allows us to take account of health and safety concerns and to give appropriate weight to any potential risks to the health and safety of residents.

First it is important to make clear that there would be no benefit to Mr. Mooney in having his case considered under FOIA. There is an equivalent exemption under FOIA and requestors do not have the benefit of the presumption of disclosure under FOI. However we have in any event considered whether EIR applies.

The purpose of the request is not relevant to the question of whether the request is for environmental information.

Taking into account the guidance in Henney as applied in DfT and Porsche Cars GB v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC) (‘Cieslik’), we take the following approach. First, we need to identify the ‘measure’ or ‘activity’ that the information is ‘on’ or about. Then we must ask if that measure or activity has the requisite environmental impact for the purposes of regulation 2(1).

This is not restricted to the measure or activity the information is specifically, directly or immediately about. The information can be about more than one measure or activity. The relevant measure or activity is not required to be that which the information is “primarily” on. A mere connection, however minimal, is not sufficient. 

Identifying the measure or activity that the disputed information is “on” may require consideration of the wider context and is not strictly limited to the precise issue with which the information is concerned, or the document containing the information. 

It may be relevant to consider:

The statutory definition in regulation 2(1)(c) does not mean that the information itself must be intrinsically environmental.

The requested information in this case is a long list of documents ‘in respect of the Updating of the Lincolnshire Minerals and Waste Local Plan’. It is clear from the documents in the bundle that by the ‘Updating of the Lincolnshire Minerals and Waste Local Plan’, Mr. Mooney is referring to the document that was sent to, amongst others, the Parish Council in November 2022 as part of the Council’s ‘targeted consultation’ or an information gathering process of bodies or organisations (including parish councils) that might hold important information relevant to the sites.

That document identified potential mineral sites for the winning and working of aggregate that had been submitted in the call for sites for consideration in the updating of the LMWLP.

By dint of the terms of the request, all information in scope of part 1 and part 2 of the request is ‘in respect’ of that document.

In our view any correspondence etc. that is in respect of a document prepared for consultation/information gathering in relation to proposed sites for the winning and working of aggregate is information that is ‘on’ or ‘about’ the activity of winning or working aggregate. The identification of sites is an integral part of the proposed activity: it is the subject matter of that activity. Information about the sites which are being considered for that activity would enable the public to be informed about and to participate in decision-making relating to that redevelopment.     

We find that a winning and working aggregate is an activity which is likely to affect the state of the elements of the environment such as air, land and landscape. We therefore find that requested information is environmental information and the EIR is the appropriate regime.

In our view there are two documents to which the request might relate. The first is the PreferredApproach(Draft)ofthenewLMWLPwhich was intended to be published in Spring 2023 and was delayed until 2024. The second is the document shared with, inter alia, the Parish Council in November 2022.

It is clear that the request relates to the document shared in November 2022. In our view the request also relates to the PreferredApproach(Draft)ofthenewLMWLP. We do not accept that the document shared in November 2022 can fairly be seen as a complete piece of work in itself. It is a document intended to facilitate information gathering for the purposes of drafting the preferred approach document.

The public authority in sending out that document was not moving from one stage of the project to another. There is no natural break in the private thinking. The authority did not intend to ‘go public’ about progress so far at that stage. It was not ready to do so. This document was near the start of the site assessment process which would culminate only in provisional proposals for allocation and proposals for sites to be discounted in the preferred approach document. In our view it cannot properly be considered as independent from the continuing work on the preferred approach draft.

We have taken account of the report of the Monitoring Officer dated 30 June 2023. We do not accept Mr. Mooney’s criticisms of that report. That report makes clear that the Council had, in June 2023, not yet made any decision relating to the removal of MS29-SL or to the inclusion of SG17. The preferred approach document to be published in 2024 will be supported by a detailed site report setting out the results of the site assessment process and the reasons behind which sites are provisionally proposed for allocation and those proposed to be discounted.

We do not accept Mr. Mooney’s submission that the evidence in the bundle shows that a final decision had already been made.

We do not accept that it can be implied from the evidence that the Council had made a final decision because it would be open to ‘a legal challenge in respect to its position of a landowner’ taking into account ‘the Council’s contractual arrangements with Breedon’. We do not accept that this can be implied from, for example, the statement by Cllr Dyer at p A55. Further we do not accept that the other evidence supports Mr. Mooney’s submission that a final decision had been taken by the Council in relation to SG17 in November 2022.

For all those reasons, in our view the request also relates to the PreferredApproach(Draft)ofthenewLMWLPwhich was intended to be published in Spring 2023 and was delayed until 2024.

At the date of the response to the request in May 2023 work had commenced on the PreferredApproach(Draft)ofthenewLMWLP but had not been completed (‘Although the county council has commenced work on the updating of the plan, this is at a very early stage… Head of Planning, 4 January 2023 page E300). The intention was originally to publish that document for consultation in spring 2023 but in March 2023 that was delayed until 2024.

We agree with the Commissioner’s guidance on regulation 12(4)(d) that for material to be ‘in the course of completion’, the draft document must still be actively being worked on, or will continue to be worked upon within a reasonable period of time

Mr. Mooney submits that the process had been suspended in March 2023 as a result of the Council receiving the injunction document. We do not accept that the evidence supports a conclusion that the process of developing the preferred approach draft had been suspended. That is Mr. Mooney’s inference. We accept the Council’s position that the date at which the draft would be published had been delayed, because of the large number of comments and site nominations that had been received. An extension to a deadline does not suggest that active work on the document has stopped.

For all those reasons we conclude that the request relates to material that was still in the course of completion in May 2023 and the exception is engaged.

We accept that there is a strong public interest in transparency in relation the Council’s decision making processes, where the ultimate outcome of that process will be the placing of sites for working and extracting minerals. Given the potential impact on residents of a plant and bagging site near their homes, there is a clear public interest in transparency and in ensuring accountability for decisions taken by the Council. The wider environmental impact of the placing of a site also adds significantly to the public interest.

The extent to which this public interest is served by disclosure of this particular information at this particular time is limited. No final decision had been made. The time for public consultation on the proposed sites had not yet arrived. Information has been and will be placed in the public domain. The process has a built in opportunity for informed scrutiny and challenge by the public at a later date before any final decisions are taken in relation to sites.

We do not accept that the existence of health and safety legislation is material to the consideration of the public interest balance in the way argued by Mr. Mooney. The potential impact on the residents and others has already been factored into our consideration of the public interest balance set out above.

Mr. Mooney makes a number of allegations that, in effect, amount to a submission that there is a plausible suspicion of wrongdoing. We do not accept that there is a plausible suspicion of wrongdoing by the Council. Many of Mr. Mooney’s allegations are suppositions based on his interpretation of the evidence and others are based on the fact that a final decision had been made, which we do not accept.

We accept that there is a need for a safe space for the Council to develop ideas, debate issues and reach decisions away from external interference and distraction. We accept that good governance is served by officers being able to fully engage with each other and third parties away from public scrutiny while a process is ongoing. This carries significant weight where the process is at an early stage, as it was in this case. In our view there is an increased risk of external interference and distraction because of the heightened local interest and level of challenge and communications relating to the potential site at SG17.

For those reasons we find that there is a strong public interest in maintaining the exception.

In our view, taking all the above into account, at the date of the response to the request, even taking full account the presumption of disclosure, the public interest clearly favoured maintaining the exception.

We agree with the Commissioner’s conclusions and the appeal is dismissed.