Andrew Stephen McGovern v The Information Commissioner

The Council does not hold further information within the scope of the request;

The Council is entitled to withhold the information withheld under regulation 12(5)(f) (interests of the information provider) on this basis;

The Council is entitled to withhold the information under regulation 13 (personal data) on this basis.

Request

‘Please can you provide all communications (including, but not limited to, notes on phone calls, emails, faxes, letters, advice notes and meetings, etc.) relating to the planning application 21/04516/FUL.

This includes any communication relating to these applications, such as those between CWAC Planning Officers, the local Ward Councillor, the applicants, the agent and architect, Kingsley Parish Council and all consultees (e.g. the PROW officers, the Biodiversity Team, the Conservation Officers, Local Lead Flood Authority, United Utilities, the Custom and Self Build team, the Highways Team, all public commentators and any other interested parties).”

Response

disclosed some information within the scope of the request;

redacted some information within the documents disclosed under regulation 12(5)(f) of the EIR (interest of the information provider). The council considered that some of the information contained within the bundle of documents attached, if disclosed, could adversely affect the interests of a person.

redacted some information within the documents disclosed under regulations 12(3) and 13 of the EIR (personal data). This included members of the public (third parties) and junior council officers.

It weighed the public interest factors and concluded that there were more factors in favour of non-disclosure than in favour of disclosure.

‘Cheshire West and Chester have refused to share information from my request about this planning application. The planning process is meant to be transparent and during 2023 they have only share external communications between my agent and their planning officer. During this 5 month (or longer) period there must have been substantial internal communication or involvement from other 3^rd parties that CWAC seem eager to shield. I’d like access to all communication and am of course happy that names and job titles are redacted, but feel strongly that by their response and that they had the release reviewed by the planning team, they are hiding pertinent information as to why they made the decisions they did’.

The ICO’s Decision Notice

Regulation 5(1): Duty to make environmental information available on request

Carried out searches of their document management system using the application reference number which had brought up the relevant application file;

They searched the relevant planning officer’s one drive, which is where some documents would have been saved prior to being uploaded to the document management system, using the application reference number and the name of the street on which the site is located as search terms;

They had searched the outlook email mailboxes of relevant Council officers using the application reference number and the name of the street on which the site is located as search terms.

Regulation 12(5)(f) : Interest of the Information Provider

Would disclosure adversely affect the interest of the person(s) who provided the information to the Council?

the disclosure would identify the individuals. In relation to one of the concerns about the application, it is less clear that the information provider would be obviously identifiable from the comment alone. However the ICO accepted that they may be identifiable from the comment within the local community and the ICO accepted the argument that the comment may lead to them being approached and may potentially jeopardise their safety;

The fear would constitute an adverse effect on the information providers, regardless of whether reprisals would actually be likely to occur. This would constitute harm which is real, actual and of substance (ie more than trivial).

Was the person under, or could they have been put under, any legal obligation to supply the information to the public authority?

Did the person(s) supply the information in circumstances where the recipient public authority, or any other public authority, was entitled to disclose it apart from under the EIR?

Has the person(s) supplying the information consented to its disclosure?

Public interest test

There is always a degree of public interest in transparency regarding how the Council has handled planning matters;

The public interest in disclosure of the withheld information to be minimal because:

The relatively weak public interest is ‘far outweighed’ by the public interest in ensuring that members of the public feel able to submit their views on planning applications without fear of being identified to the world at large.

The individuals would have a reasonable expectation that their personal data would not be disclosed;

There is no wider public interest in disclosure.

The Grounds of Appeal

Ground 1: ‘There is a large public benefit to true transparency in the planning process. The public interest test outlined is much broader than the one ICO make in their decision’.

Ground 2: ‘CWaC have created and support a 4^th ‘back-channel’ to influence planning decisions where the rules of transparency and accountability do not apply’.

‘Public benefit in true transparency in the planning process’

‘Creation and support for a 4^th “back-channel” of influence on planning applications

‘Consultee Comments’. These are experts or holders of office that add their opinion on a specific planning permission. They are published on the council planning portal, sometimes redacted, available for everyone to access, rebut, agree or refer to in an onward process.

‘Public Comments’. Any member of the public who wishes to add a comment can fill out a form or send a letter/email. They are published on the planning portal. Sometimes redacted and available to everyone to access, rebut, agree or refer to in an onwards process.

‘Submitted Documents’. These documents are from anyone involved in the application, supporters, objectors, experts, council employees. They are published on the planning portal, sometimes redacted and available to everyone to access, rebut, agree or refer to in any onward process.

The ICO’s response

The exception is engaged because the ‘adverse affect’ on the interests of the person(s) providing the information, has been met for the reasons given at paragraphs 23 and 24 of the DN;

In terms of the balance of the public interest test, he notes the submissions on transparency but quotes from paragraphs 32 and 33 of the DN (the amount of information withheld is minimal; the information disclosed meets the public interest in transparency; the public interest in disclosure is outweighed by the public interest in ensuring that members of the public feel able to submit their views on planning applications without fear of being identified).

’31. The Appellant has argued that the Council hasn’t published all information relating to this particular planning application online which the Appellant has obtained as a result of this EIR request. In relation to transparency, providing information under EIR is analogous to disclosure in the public domain…therefore…the Appellant’s grounds do not disturb his findings’.

The Appellant’s grounds do not appear to challenge the finding that the Council does not hold further information within the scope of the request in relation to regulation 13 EIR. For completeness the ICO relied on the submissions in the DN if they remained in dispute. He added that:

The Appellant’s reply

‘I believe the council has not released all information. I’ve attached the disclosed information…

It shows that in the last 6 months prior to the application result being published the only communications shared were us chasing for an update, I’d say this was highly unlikely based on the fact one objector had employed a planning consultant to lobby against it and engaged the ward councillor to speak directly to the planning officer and head of planning as well as approaching the planning officer directly on a regular basis throughout the process’.

Legal Framework

‘(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

A public authority shall apply a presumption in favour of disclosure.[…]

For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that - […]

For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect— [,…]

‘5.—(1) 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, a public authority that holds environmental information shall make it available on request’.

Withholding Information under the EIR

12(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if –

A public authority shall apply a presumption in favour of disclosure.

…

For the purposes of paragraph 1(a), 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 –

‘13(1) To the extent that the information requested includes personal data of which

(2A) The first condition is that the disclosure of the information to a member of the public otherwise than under these Regulations –

The Tribunal's Role

Discussion and Conclusions

Issues

Does the Council hold further information within the scope of the request?

Is reg 12(5)(f) engaged? Would disclosure of the redacted information adversely affect the interests of the person/people who provided the information to the Council?

If so, does the public interest weigh in favour of maintaining that exception?

Is regulation 13 engaged?

In his complaint to the ICO, the Appellant stated:

In his reply, dated 27^th May 2024 he reiterated this point. He refers to the disclosed information and points out that in the 6 months prior to the application result, the only communications disclosed were the Appellant chasing for an update. He asserts that this is highly unlikely, especially as one of the objectors had employed a planning consultant to lobby against the application, engaged a ward councillor to speak directly to the planning officer and head of planning, as well as approaching the planning officer directly on a regular basis throughout the process.

We note that in the application for a review, the Appellant asserted ‘it’s hardly surprising a member of the planning team might choose to not dispute anything that might expose their bias or influence in this supposedly transparent process’.

The ICO examined this issue at some length during it’s investigation: the Council was asked to explain what searches were carried out. In their email dated 25^th January 2024 they provided a very detailed reply:

“1.

What searches have been carried out to check no information was held within the scope of the request and why would these searches have been likely to retrieve any relevant information? Searches were carried out on the officers’ outlook email accounts where various correspondence would have been received directly to the officer in relation to the planning application, officers work ‘one drive’ where documents attached to emails would have been saved prior to uploading to the document management system. The document management system (idox/uniform) was searched where correspondence, all plans and public comments/consultation responses are held electronically including those made via the local authority’s website.

2.

Please describe thoroughly any searches of relevant paper/electronic records and include details of any staff consultations. A search was carried out for the site address and then a search under the application reference number was carried out on the planning officer’s…work email ‘outlook’ account and one drive where files are saved. A copy of the electronic file tied to the application reference number from document management system (idox/uniform) was downloaded and made available. Consultation responses to planning applications submitted electronically through public access automatically upload and appear on the webpages, so responses are all publicly available, unless requested to remain as sensitive. Consultation response may be received by email, but are also made publicly available, unless requested otherwise, however all ‘sensitive’ files on the document management system were made available upon request.

3.

If searches included electronic data, which search terms were used and please explain whether the search included information held locally on personal computers used by key officials (including laptop computers) and on networked resources and emails. All information is saved to the one drive allocated to planning officer, no information is saved to any laptops or personal computers. Application reference number 21/04516/FUL was searched on document management system (idox/uniform) to bring up the file and associated documents. A search by application reference number 21/04516/FUL and address ‘Dark Lane’ was searched for on officer’s email account searched under ‘all mailboxes’ from dropdown on outlook and a search was carried out on the officers one drive….

5.

If the information were held would it be held as manual or electronic records? Electronic records. No paper records are kept in connection with planning applications.

6.

Was any recorded information ever held relevant to the scope of the complainant’s request but deleted/destroyed? No

7.

If recorded information was held but is no longer held, when did the [public authority] cease to retain this information? N/A

…

11.

Is there a business purpose for which the requested information should be held? If so what is this purpose? Information relating to a planning application would be held as part of the planning application file, as part of the public register in accordance with the Town and Country Planning (Development Management Procedure) (England) Order 2010

12.

Are there any statutory requirements upon to retain the requested information? As part of the public register in accordance with The Town and Country Planning (Development Management Procedure)(England) Order 2015

13.

Is there information held that is similar to that requested and has the [public authority] given appropriate advice and assistance to the applicant in line with the duty contained at regulation 9 of EIR? No’.

Based on the very detailed responses, we agree with the ICO’s conclusion that appropriate searches were undertaken to identify any information held within the scope of the request.

We note the Appellant’s assertion that it is ‘highly unlikely’ that the documents released constitute full disclosure, he feels that there must have been internal communication or communication from third parties which has not been disclosed – at least during the 5 months before the decision. We attach weight to the written evidence (regarding the searches undertaken) from the Council and find no basis to doubt it’s accuracy. As such, we conclude that the correct searches were undertaken and that everything that the Council was able to find has either been disclosed or is subject to the exemptions being considered in this appeal. It is important to note that the searches and disclosure relate to recorded information only. It may well be that telephone calls or conversations have taken place (it is not for us to speculate), however unless they were written down/a note was taken, it would not be ‘recorded information’ and therefore the Council would not be under an obligation to disclose the content of such discussions. We do not find it incredible that further recorded information does not exist. From the exchanges recorded, it seems that the current application was very similar to a previous application, if this was the general view, it is not surprising that there was no substantial further correspondence on the subject, in the period of time leading up to the decision.

We note that one of the reasons the Appellant was particularly concerned that full disclosure was not made is because the planning team were involved in reviewing his response. The ICO considered this and concluded that it is not uncommon for relevant teams to be consulted when dealing with a disclosure request as they ‘often better understand the information held and the consequences of disclosure. The Commissioner is not aware of any evidence to suggest that this has prevented information from being disclosed in this case’. We agree with the ICO on this issue, it is common practice for teams familiar with a request to be consulted about disclosure for the reasons set out. We do not find that this give us cause to believe that information has deliberately (or otherwise) been withheld.

We have examined the redactions in some detail and state from the outset that the vast majority – almost all – of the redactions relate to names, addresses and job titles of individuals. We note that the Appellant accepted in his referral to the ICO that he was ‘of course happy that names and job titles are redacted’. He also seemed to accept that addresses will be withheld where a comment is confidential. In light of this, only a very small number of redactions are in issue. Namely those at page 54 of the open bundle (6 words), page 57 (16 words), page 63 (7 words) and page 109 (13 words).

The Council argued that the information providers could be identified from the withheld information and that “some of the comments that have been given against the outline development would have no doubt antagonised the person who has submitted the planning application with the result that these people could then be approached if identified either in the street or at their property and potentially jeopardise their safety”.

The ICO took a different view, concluding that:

The Appellant invited us to find in line with the ICO, that it would be highly unlikely that disclosure would lead to harm to the individuals.

We agree that the redacted comments at pages 54 and 63, would allow the individuals to be identified. In relation to the redacted comment at page 57, we agree with the ICO that the individual may be identifiable within the local community.

We have indeed concluded that it is not likely (on the balance of probabilities) that disclosure of the withheld information would actually lead to harm to any of the individuals who have made comments. However, we do agree with the ICO that it would cause distress to the information providers, as they would be identifiable - especially in circumstances where they had specifically made it clear that they did not agree to having their comments made publicly available via the planning portal. They may have fears about the consequences of having their comments disclosed, in circumstances where they had made them feel assured that those comments were made in confidence – even if those fears are unjustified. We agree that it is the subjective fear itself (as opposed to an objective fear) which would adversely affect the interests of those individuals.

We note the Appellant’s concerns that if the redactions would have ‘antagonised’ them, this must mean that they were substantial and not just an enquiry:

We have undertaken our own assessment of the evidence, including a detailed analysis of the redacted information.

We note the Appellant’s submission that ‘all points of view should be published for discussion, at the very least to ensure a full picture of all opinions’, we note here that two of the redactions are not ‘points of view’, they are simply information which would lead to the individuals being identified.

There is only one redacted comment which may be said to ‘antagonise’. We appreciate the Appellant’s concern that this comment must be substantial, however having considered the redaction (which is only one sentence – ie not substantial in length), the Appellant can be assured that the content of the comment which is redacted, was actually discussed by the planning officer with the Appellant’s representative and addressed. He has not been deprived of the opportunity to address an issue raised against his application. As such, there is very little benefit to disclosing the single comment.

In relation to the comment at page 109 (the second from last redaction on the page), we do not believe that the individual can be identified from the first half of the comment, nor within the community. However, the second part of the sentence is an address - this is personal data and as such, there is no purpose to justify releasing it (it also seems to relate to an entirely different matter and is therefore out of scope). As such we find that Regulation 12(5)(f) is not applicable to the first half of the redaction (ie the first 8 words) and that this should be disclosed.

Was or could the person/people have been put under any legal obligation to supply the information to the public authority?

We accept that the individuals were not under any legal obligation to provide the information. The Appellant does not contend otherwise.

Did the person/people supply the information in circumstances where the public authority was entitled to disclose it - apart from under the EIR?

We accept that the individuals who supplied the information did not do so in circumstances where the public authority was entitled to disclose it apart from under the EIR. The Appellant does not contend otherwise.

The Appellant places significant weight on this submission. He submits that there is substantial public benefit to ‘true transparency in the planning process’.

We have had regard to the July 2020 Transparency International Report and the assertion that Cheshire West and Chester is one of the lowest performing councils in their sample of 50 and to the submission that a lack of transparency is one of the key drivers leading to lack of trust in the planning system, such that the public benefit is much larger than simply the information being released.

The Appellant further submits that the Council have created and support a 4^th ‘back-channel’ to influence planning decisions where there is no transparency and accountability.

We have considered all the redacted information at length. We do not find that there exists ‘a way in which planning applications can be influenced widely without any form of audit, fact check or transparency’. The Council sought to redact a small amount of information based on the application of legislation. The Appellant appealed their decision to the ICO and then to the Tribunal. There has been significant ‘fact check’ and ‘audit’ at each stage. Legislation permits certain information to be redacted (indeed the appellant accepts in his grounds of appeal where he acknowledges that there are 3 channels where information can be submitted and that these can all be redacted before being uploaded onto the portal) – having examined those redactions, we are can reassure the Appellant that there is nothing unusual, untoward or unlawful about the Council’s actions.

We note here that the Appellant takes issue with the Council’s alleged failure to record conversations that took place – the Tribunal does not have the jurisdiction to rule on what evidence should exist – this is not within our remit. We are permitted only to review the evidence and make our own decision.

There is no evidence before us that the Council are allowing a channel of influence that allows people to influence planning applications without any public record being published. The number of redactions is very small. The vast amount relate personal data (ie names, addresses and contacts) which the Appellant has not taken issue with (addressed below). There are only 4 other redactions.

We find that the amount of information that has been disclosed (ie the vast majority) meets the public interest in transparency. We note that the ICO records that the Appellant had taken issue with the fact that the Council had not published all the information relating to his planning application online – albeit he did then obtain them as a result of his EIR request. We agree with the Appellant that it would have been more helpful if the Council had published the information without him needing to make an EIR request. However, the ICO is right to state that providing the information under EIR is the same as disclosure to the public, therefore this does not make a material difference to our decision.

We have found that 3 out of the 4 redactions should not be disclosed. We agree with the ICO that the public interest in disclosure of these 3 (short) redactions (just 29 words) is outweighed by the public interest in ensuring that members of the public area able to submit their views freely. Disclosure would undermine confidence that there is a safe space where individuals can communicate confidentially without the fear of disclosure. We find that it could inhibit future communications on the topic in the circumstances. We accept that this would be contrary to the public interest. This is especially so, where the issue remained live and contentious at the date of the request and the response.

Is Regulation 13 engaged?

The ICO asserts that the information is exempt because it is the personal data of individuals, where that disclosure would contravene principles related to personal data as set out in Article 5 of the General Data Protection Regulation.

The Appellant accepts that names and job titles have been redacted on the grounds that this information is personal data.

The Appellant also seems to accept that addresses will be redacted where an Appellant chooses to keep his comments ‘confidential’. There does not seem to be any challenge to these redactions.

We reiterate that the vast majority of the redactions relate solely to these issues or contact details of individuals, namely pages 52-56, 58-62, 63 (apart from 7 words), 64-69, 72-108, 109 (apart from 13 words), 110-115, 161, 166-167. We agree with the ICO that this is the personal data of those individuals.

It is unclear if the Appellant seeks to have any of this information disclosed. We note the general submissions relating to transparency, a 4^th back channel and the public interest.

For the reasons set out above we consider that:

Accordingly we do consider the DN to be in accordance with the law – other than the redaction at page 109.

The appeal is therefore refused, subject to the first 8 words of the one redaction at page 109, where we direct that this should be disclosed within 28 days.