Homeseptic Ltd v The Information Commissioner

This is an appeal against the Information Commissioner’s decision notice IC-271856-D3H0, issued on 10 June 2024.

The parties consented to the matter being determined without a hearing. The Tribunal was satisfied it could properly determine the issues without a hearing.

The Appellant is a limited company specialising in wastewater and sewerage treatment. Its director, Andrew Foreman, has conducted this appeal. The Environment Agency (“EA”) is responsible for regulating groundwater discharge that results in, or may result in, pollutants entering groundwater in England through issuing environmental permits.

A permit was issued for one of the Appellant’s clients on 5 September 2023. The permit was issued with numeric limits to ensure there was no risk to groundwater. The Appellant did not agree with the numeric limits and sought to challenge the EA’s decision by way of an appeal to the Planning Inspectorate. The appeal was then withdrawn.

On 6 September 2023 Mr Foreman requested “all documents, emails, files, calculations and worksheets” from the EA relating to the permit application. The Appellant added “please ensure that this includes all information that you may come to rely upon to support the effluent quality restrictions applied.”

The EA disclosed documents on 10 October 2023:

On the same day the Appellant responded and asked whether all the requested information had been provided. On 11 October 2023 EA said that the complainant had received “all the information”.

On 20 October 2023 the Appellant complained to the Commissioner. The complaints included that the EA’s response was late and that further information fell to be disclosed.

The Commissioner investigated and the EA made submissions to the Commissioner on 22 April 2024 and 10 May 2024. The EA considered it had disclosed all information within the scope of the request.

The Commissioner decided that the EA was correct to rely on regulation 12(4)(b) and refuse the request as manifestly unreasonable. The Commissioner did find that the EA took too long to decide the request. During the investigation the EA made further disclosure to the Appellant of:

On 10 May 2024 the EA sought to rely on the exception in regulation 12(4)(b) of the Environmental Information Regulations 2004 (“EIR”).

On 10 June 2024 the Commissioner issued the Decision Notice which is the subject of this appeal. The appeal was received on 6 July 2024. Case management directions were made on 18 September 2024 by District Judge Moan, sitting as a judge of the First-tier Tribunal.

On 28 April 2025 the Appellant filed an application for a case management direction. The Appellant considered that potentially material evidence was omitted by the Respondent and sought an adjournment until the evidence was disclosed.

This application was prompted by correspondence in another appeal the Appellant has before the Tribunal, FT/EA/2024/0478. The correspondence made clear that the Respondent had liaised with the Environment Agency when preparing the bundle for this appeal. The Respondent responded to the Appellant that the bundle is required to be concise and relevant, and those discussions were not relevant to any issue before the Tribunal. The Respondent has not sent any response to the application to the Tribunal.

The Tribunal does not accept that those emails between the Respondent and the public authority are relevant to this appeal. The Appellant cannot point to any precise issue in this appeal the material would be relevant to. It is insufficient to make unparticularised reference to ‘the nature of the case’.

The application for a postponement pending disclosure is refused on two grounds. First, the relevancy of the material has not been established. Second, it would present a disproportionate use of Tribunal resources when compared to the issues in the case. Adjournment pending disclosure therefore does not accord with the overriding objective.

The Respondent applied for the Tribunal to strike out the appeal on the basis that it has no reasonable prospects of success, pursuant to Rule 8(3)(c). The application was not particularised further but relied on the other submissions made in response to the appeal.

The test for strike out is a high one. The Tribunal is not satisfied that it is met in this case. The issues in the case require a holistic assessment, which will be discussed further below. Moreover, the EIR public interest test and presumption in favour of disclosure apply. It is difficult to see how the Tribunal could be confident that this appeal had no prospects of success without substantively evaluating those issues. The Tribunal is therefore not satisfied that the appeal has no reasonable prospects of success. The application for strike out is refused.

Regulation 5(1) requires a public authority that holds environmental information to make it available on request. It was not disputed that the information sought by the Appellant constituted environmental information as defined by Regulation 2.

A public authority may refuse to disclose environmental information if an exception under Regulation 12(4) or (5) applies and in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

In this appeal the relevant exception relied on by the Commissioner (and EA) is EIR Regulation 12(4)(b): “the request for information is manifestly unreasonable.”

Regulation 12(2) states there is a presumption in favour of disclosure.

In Dransfield v Information Commissioner and Devon County Council [2015] EWCA Civ 454 the Court of Appeal held at [78] that the difference between ‘manifestly unreasonable’ in Regulation 12 and ‘vexatious’ in section 14 of the Freedom of Information Act 2000 was “vanishingly small”. In Dransfield the Court of Appeal did not disturb the Upper Tribunal’s identification of four relevant criteria for determining vexatiousness:

These criteria are not exhaustive. Dransfield also makes clear that the test is an objective one and the starting point is that vexatiousness (here manifest unreasonableness) primarily involves a request which has no reasonable foundation, i.e. no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public.

The test is a high one and a holistic assessment is required. Dransfield is also authority that prior dealings between a requester and a public authority may be taken into account when assessing whether a request is vexatious (or manifestly unreasonable).

The tribunal must therefore determine the following issues:

We received a 1247-page bundle of submissions and evidence. The parties’ submissions included the Appellant’s ‘background document’, the Appellant’s annotated copy of the Decision Notice and the Commissioner’s Response.

Though they are not exhaustive considerations, it is convenient to begin this assessment with the four factors identified by the Upper Tribunal in Dransfield.

There has been a significant burden on the EA in complying with the Appellant’s requests to date. Between June 2022 and June 2023 the complainant submitted 14 complaints relating to similar issues to this appeal. The Appellant does not accept that it is 14 complaints, but has failed to say which of the complaints it disputes as having been made. The Tribunal finds the Respondent has demonstrated on the balance of probabilities that 14 complaints have been made.

The EA says it has spent up to 84 hours dealing with the Appellant’s requests made in 2023 alone, which the Appellant did not dispute. Part of the Appellant’s requests require the EA to check many individual cells in large spreadsheets to ensure that formulae display correctly. The Appellant’s requests present a significant burden on the EA’s resources.

In the version of the Decision Notice annotated by the Appellant its Director says its motive is “to ensure the provision of quality permits for our clients which do not drive environmental and human harm, are fair and consistent and are based on accurate assumptions and inputs”.

However, in same annotated Decision Notice, its Director writes “We do not feel that we can make the correct decision as to whether to make an appeal in the first place or not. We also feel that if the EA continually produce new evidence, during the appeals process, which they claim to have been undertaken as part of the Permit process then we cannot fairly enter an appeal.” The annotated Notice goes on: “The information is needed. If it was not needed then why did the EA look to use it in their defence during the associated appeal?”

The problem with this is that the Appellant withdrew its client’s appeal to the Planning Inspectorate concerning this particular permit. It could have proceeded with the appeal and ventilated the issues in that expert appeal forum. If the aim is, as the Appellant says, to ensure that its clients obtain quality permits, then it is difficult to understand why it would not pursue the remedy that could secure that.

The Appellant does not give any convincing reason for withdrawing that appeal, only hypothetical issues of fairness in the appeal. The Appellant does not say why the Planning Inspectorate could not manage any actual or perceived unfairness to the Appellant’s clients. The Tribunal does not accept that the motive for the request was ensuring the provision of permits in circumstances where the appellate route to obtaining those permits has not been pursued, without further explanation. We find that there is no reasonable motive for the request.

This is to be considered in terms of objective public interest, though a request can have a value or serious purpose while serving an entirely private interest: Soh v The Information Commissioner and Imperial College London [2016] UKUT 0249 (AAC). However, this appeal can be distinguished from Soh on its facts. In that case the Appellant was pursuing a claim to the Employment Tribunal, and argued the disclosure was required for those proceedings.

In this case the appeal to the Planning Inspectorate has been withdrawn, so the value or serious purpose of the request is still not established. The annotated Decision Notice says “The serious purpose of our request is demonstrated in the fact we raised an appeal with the Planning Inspectorate. This was the purpose of making the FOI/EIR request.” Again, this begs the question of why the Planning Inspectorate appeal was withdrawn, particularly in the context of a series of requests where the Appellant already knew what the Respondent was and was not likely to disclose. Therefore, we are not satisfied that the request has value or a serious purpose.

There is limited evidence that the Appellant’s requests are causing an “unjustifiable level of distress” to the EA. However, there is only brief mention of this in the context of a request submitted in January 2024. There is insufficient evidence to give this consideration weight in this case.

We have considered the factors above and all the circumstances of the case. While it would be understandable for the Appellant to want to understand how decisions were made on its client’s application, the fact that the appeal to the Planning Inspectorate was withdrawn reduces any value the request might have had to the Appellant. In the context of a series of requests where the Appellant is raising the same issues multiple times we unanimously agree that the Appellant’s request was manifestly unreasonable.

There is a general public interest in the disclosure of how public authorities carry out their functions. The public is entitled to know how its servants carry out their duties and how decisions are made. This is particularly acute in the context of environmental regulation of groundwater.

We do not consider there to be strong public interest in disclosure of the information sought by the Appellant. This is strengthened by nobody else having applied for disclosure of it, despite it ostensibly affecting anyone who applies for a permit.

It is important that the EA is held accountable for its decision-making, but this is already achieved by the appellate process. The Appellant has chosen not to exercise that route, but it does mean that the public interest in disclosure for accountability purposes is reduced.

One of the specific pieces of information sought by the Appellant is access to part of a spreadsheet which functioned as a groundwater risk assessment. We are prepared to accept there is potential for disclosure of this to be in the public interest as it demonstrates how the EA makes decisions. The Appellant says that this forms the centre of the calculation of numerical discharge limits. However, the Appellant has been able to articulate clearly why it considers the EA’s decision was wrong, in his Rule 24 statement at page A110 of the bundle. The Appellant is even able to identify that the concentration of substance in discharge was stated to be 89mg/l rather than 8.3mg/l and so the summary outputs are 960% higher than they should be.

Where a request is manifestly unreasonable there will always be some public interest in maintaining the exception, namely the interest in conserving the resources of the public authority and fairly distributing those resources amongst its service users.

In this case the exacting requests from the Appellant are placing a very significant burden on a public authority which then diverts resources from its technical and time-consuming day to day work. As stated above, there is not even a clear reason for the requests.

We have concluded that the presumption in favour of disclosure does not mean that the information should be disclosed. The public interest is lessened by the availability of an appeal to the Planning Inspectorate, an expert body which is well-placed to assess the issuing of a permit and any associated conditions.

Moreover, the Appellant is able to make a clear case about the permit on the information he has. As we have set out, the Appellant is able to identify what it considers to be errors in calculations in granular detail with the information as it is. The manifestly unreasonable burden the Appellant’s demands place upon the Respondent displace the presumption in the case of this particular request.

The exception in regulation 12(4)(b) is engaged; the request is manifestly unreasonable. Though there is a presumption in favour of disclosure, in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information in this case.

The appeal is unanimously dismissed.