Case Reference: FT/EA/2024/0449
Information Rights
Decided without a hearing
Decision given on: 16 September 2025
Before
JUDGE HEALD
MEMBER COSGRAVE
MEMBER GAPLEVSKAJA
Between
PETER TILSON
Appellant
and
(1) THE INFORMATION COMMISSIONER
(2) NORTHUMBERLAND COUNTY COUNCIL
Respondents
The appeal was decided without a hearing. This was agreed by the parties, Directed by CMD of 6 March 2025 and allowed by the Tribunal by rule 32(1) of the Tribunal Procedure (First -Tier Tribunal) (General Regulatory Chamber) Rules 2009.
Decision: The Appeal is Dismissed.
REASONS
This Appeal is brought by the Appellant by reg 18 Environmental Information Regulations 2004 and section 57 Freedom of Information Act 2000. It relates to a Decision Notice issued by the 1st Respondent on 12 November 2024 with reference number IC-305215-X6G7. It concerns a request for information made by the Appellant to the 2nd Respondent on 5 February 2024 and the response of the 2nd Respondent that the request was vexatious (later manifestly unreasonable).
What follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The absence of a reference to any specific submission or evidence does not mean it has not been considered. In this Decision page numbers indicated by their inclusion in brackets refer to pages of the Bundle. In this Decision the following definitions are adopted:-
FOIA | |
Data Protection Act 2018 | DPA18 |
Environmental Information Regulations 2004 | EIR |
the public interest balance test in reg 12(1)(b) EIR | the PIBT |
The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 | 2004 Regs |
Tribunal Procedure (First -Tier Tribunal) the (General Regulatory Chamber) Rules 2009 | 2009 Rules |
Peter Tilson | the Appellant |
The Information Commissioner | the IC |
Northumberland County Council | the Council |
request made by the Appellant | the Request |
the IC's decision notice dated 12 November 2024 | the DN |
Zoe Sheridan of the Council | Ms Sheridan |
Upper Tribunal & First-tier Tribunal | UT & FtT |
Code of Practice on the discharge of the obligations of public authorities | the EIR Code |
guidance issued by the IC | the Guidance |
Evidence and matters considered
For this Appeal we were provided with the Bundle of 319 pdf pages. The Bundle contained a witness statement from Ms Sheridan dated 21 March 2025 (200-255) and from the Appellant dated 24 March 2025 (256-259).
Background
Between 1988 and 2019 the Appellant worked as a lawyer for the Council. From 2002 to 2019 he was a principal solicitor responsible for amongst other things FOIA and EIR. In 2017 an application (ref 17/01329/OUT) was made to the Council for outline planning consent for a property near the Appellant's private residence about which he and others objected. The planning applicant appealed to the Planning Inspectorate because the Council had not issued its decision within relevant time limits. The Inspector's appeal decision in December 2019 was to allow the appeal subject to conditions and with all other matters reserved. In December 2021 the Council granted the reserved matters application. Building and other works then commenced and the house was built (186). We are not aware of when it was finally completed.
The Appellant has over time raised a number of concerns about the process and outcome which included issues relating to the absence of an ecology report and the connected negative environmental impacts on the site, the whereabouts of certain information, what had been said to the Inspector and not finding out in a timely way about the Inspector's decision. He complained to the Local Government and Social Care Ombudsman who on 22 August 2023 issued a final decision (167). This included:-
"Summary: Mr X complained the Council failed to properly consider the impact a development would have on his amenity before it approved a reserved matters planning application. There was no fault in the way the Council made its decision. We did not investigate other matters Mr X complained about, because further investigation was unlikely to result in a finding of fault, a recommendation for a remedy or any other meaningful outcome"
Previous Requests made by the Appellant to the Council
When the Council responded to the Request on 5 March 2024 they said (265):-
"The Council has received from you:
• 5 requests under the Freedom of Information Act 2000 and Environmental Information Regulations 2000
• 4 Internal Reviews
• 2 ICO complaints
• 189 emails"
In her letter to the IC of 30 August 2024 Ms Sheridan for the Council said (301):-
"...This is Mr Tilson’s 8th request, all relating to this specific land and planning application.
To provide some updated background statistics of Mr Tilson’s involvement since his first request related to this land was made:
8 FOI/EIR requests all relating to this matter and planning application since 2021 (with one of those being back in 2017, 7 since 2021)
4 Internal reviews
3 ICO complaints (including this complaint)
1 subject access request
429 emails from Mr Tilson"
In the Council's response to the Appeal it said (112):-
"12...At the time of dealing with the Complaint to the Information Commissioner the Appellant had made 5 information requests, in addition to the request relevant to this appeal, all relating the same particular planning or as a consequence of Mr Tilson’s interest or complaint regarding the planning matter with references as follows..."
We saw in the Bundle evidence of 4 prior requests having the Council's references 9091, 9171 (which led to appeal FT/EA/2022.0212), 9398 and 12844. They all (as with the Request) related to the same planning application granted fully by December 2021. We also noted that for example:-
in ref 9171 the Council agreed that it had not stored or searched for information requested well.
in ref 9091 the IC decided in DN IC-120030-C7D7 that although the Council had initially decided the information requested was not held during the course of the IC's investigation the Council located a copy of the information requested.
Although it may be an issue of timing, we were not able to resolve the difference between the Council's position on the number of prior requests.
The Request
On 5 February 2024 (262) the Appellant made the Request. He asked:-
"under the EIR/FOIA regime can you provide me with copies of the following
All correspondence between the applicant Gary Featherstone and/or his expert Tony Carter of Carter Smith Associates and Northumberland County Council’s Conservation Officer and Ecologist relating to satisfying the ecological and conservation issues identified in the report of Ann Deary Francis and the Memorandums of Sharon Kelly dated 20 July 2017, 13 th June 2018 and 3rd September 2018, including all emails, correspondence and recorded notes of telephone conversations.
All correspondence emails letters and notes of telephone conversations between Northumberland County Council staff and the Local Government Ombudsman’s Office In response to my complaint to the LGO after the Council’s stage 2 Complaint Response.
It should be noted that the Council’s retention schedule states that material relevant to Planning Appeals should be retained indefinitely.
The Council now say that a copy of my experts report from Design Two was uploaded to their portal in 2019. This is despite the Head of Planning in his stage 2 Complaint Response, saying the Council had never seen the report despite me hand delivering a copy at the time I sent the original to the Planning Appeal Inspectorate. It is significant that only my copy letter to the Planning Inspectorate is date stamped as received by them. The Council falsely initially told the Ombudsman that the report in their possession was also date stamped as received. This is not correct and I believe this is the copy I hand delivered to the front desk at County Hall..
As the Council say they uploaded the report to their portal in 2019, what steps did they take to address the ecological and environmental matters raised by the author Mr Colin Wardle in his report.
Please provide copies of all correspondence emails memos and notes from Council Officers relating to the matters raised in the Design Two report."
Law
The EIR
The Council initially responded by reference to FOIA. However, when the IC became involved it advised that (295) parts 1 and 3 were EIR (not FOIA) requests and part 2 was a subject access request and should be reconsidered on that basis.
Reg 5 EIR says as follows:-
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"
These rights are subject to a number of exceptions such as reg 12(1) and 12(4)(b) EIR which state:-
Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—
an exception to disclosure applies under paragraphs (4) or (5); and
in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.
For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that...(b)the request for information is manifestly unreasonable"
Manifestly unreasonable
The FOIA test of "vexatious" and the EIR test of "manifestly unreasonable" are two tests with one meaning (see Dransfield-v- (1) Information Commissioner and (2) Devon County Council and Craven -v-(1) The Information Commissioner and (2) The Department for Energy and Climate Change [2015] EWCA Civ 454 at para 7.) The EIR and FOIA tests are however different in that when assessing reg 12(4)(b) EIR there is in addition a consideration of the PIBT in reg 12(1)(b) EIR and reg 12(2) EIR which requires a public authority to apply a presumption in favour of disclosure.
The UT in Information Commissioner vs Devon County Council & Dransfield [2012] UKUT 440 (AAC), (28 January 2013) provided guidance on the meaning of "vexatious". It said “vexatious” connotes manifestly unjustified, inappropriate or improper use of a formal procedure.” Four broad issues were identified in Dransfield but these questions were said to be non- exhaustive and for illustration only. The UT said:-
“28....the observations that follow should not be taken as imposing any prescriptive and all encompassing definition upon an inherently flexible concept which can take many different forms."
"82...There is no magic formula – all the circumstances need to be considered in reaching what is ultimately a value judgement as to whether the request in issue is vexatious in the sense of being a disproportionate, manifestly unjustified, inappropriate or improper use of FOIA”.
In Dransfield the Court of Appeal added (para 68):-
“The decision maker should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious”
"…Parliament has chosen a strong word which therefore means that the hurdle of satisfying it is a high one, and that is consistent with the constitutional nature of the right.”
The four themes that were identified for consideration were (1) the burden on the public authority and its staff (2) the motive of the requester (3) the value or serious purpose of the request, and (4) the presence of any harassment or distress.
As regards burden the UT said:-
“29..the present or future burden on the public authority may be inextricably linked with the previous course of dealings. Thus the context and history of the particular request, in terms of the previous course of dealings between the individual requester and the public authority in question, must be considered in assessing whether it is properly to be characterised as vexatious. In particular, the number, breadth, pattern and duration of previous requests may be a telling factor.”
“the greater the number of previous FOIA requests that the individual has made to the public authority concerned, the more likely it may be that a further request may properly be found to be vexatious. “
“..requester who consistently submits multiple FOIA requests or associated correspondence within days of each other, or relentlessly bombards the public authority with e-mail traffic, is more likely to be found to have made a vexatious request.”
“a long history of requests e.g. over several years may make what would otherwise be, taken in isolation, an entirely reasonable request, wholly unreasonable in the light of the anticipated present and future burden on the public authority.
On motive:-
“34...the motive of the requester may well be a relevant and indeed significant factor in assessing whether the request itself is vexatious. The FOIA mantra is that the Act is both “motive blind” and “applicant blind”. ….., the proper application of section 14 cannot side-step the question of the underlying rationale or justification for the request. What may seem an entirely reasonable and benign request may be found to be vexatious in the wider context of the course of dealings between the individual and the relevant public authority. Thus vexatiousness may be found where an original and entirely reasonable request leads on to a series of further requests on allied topics, where such subsequent requests become increasingly distant from the requester’s starting point.”
“35...it is important to bear in mind that the right to information under FOIA is a significant but not an overriding right in a modern democratic society. As has already been noted, it is a right that is qualified or circumscribed in various ways. Those restrictions reflect other countervailing public interests, including the importance of an efficient system of public administration. Thus section 14 serves the legitimate public interest in public authorities not being exposed to irresponsible use of FOIA, especially by repeat requesters whose inquiries may represent an undue and disproportionate burden on scarce public resources.”
For the question of the value or serious purpose:-
“38 Does the request have a value or serious purpose in terms of the objective public interestin the information sought? In some cases the value or serious purpose will be obvious – say a relative has died in an institutional setting in unexplained circumstances, and a family member makes a request for a particular internal policy document or good practice guide. On the other hand, the weight to be attached to that value or serious purpose may diminish over time. For example, if it is truly the case that the underlying grievance has been exhaustively considered and addressed, then subsequent requests (especially where there is “vexatiousness by drift”) may not have a continuing justification. In other cases, the value or serious purpose may be less obvious from the outset. Of course, a lack of apparent objective value cannot alone provide a basis for refusal under section 14, unless there are other factors present which raise the question of vexatiousness. In any case, given that the legislative policy is one of openness, public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident.”
Finally on the question of harassment and distress:-
“39..vexatiousness may be evidenced by obsessive conduct that harasses or distresses staff, uses intemperate language, makes wide-ranging and unsubstantiated allegations of criminal behaviour or is in any other respects extremely offensive”
Section 12 FOIA
Section 12 FOIA provides an exemption if the costs of complying with a FOIA request exceed the appropriate limit (for which see the 2004 Regs). Section 12 has no direct equivalent in the EIR. In Craven -v- the Information Commissioner and the Department of Energy and Climate Change [2012] UKUT 442 (ACC) (upheld in Dransfield in the Court of Appeal) the UT stated that:-
"25...it must be right that a public authority is entitled to refuse a single extremely burdensome request under regulation 12(4)(b) as “manifestly unreasonable”, purely on the basis that the cost of compliance would be too great (assuming, of course, it is also satisfied that the public interest test favours maintaining the exception). The absence of any provision in the EIR equivalent to section 12 of FOIA makes such a conclusion inescapable.”
The PIBT (reg 12(1)(b)EIR)
The relevant date for considering the PIBT in the EIR context was considered by the UT in O'Hanlon -v- the Information Commissioner and the Health and safety Executive [2025] UKUT 66 ACC. It held thatthe correct time for considering both the engagement of an exception and the public interest test was at the conclusion of the internal review.In this case that would be on or about the 12 April 2024 (273). In our view there would be no impact on our Decision if the date was when the Council first responded on 5 March 2024.
On the PIBT the UT in Vesco -v- the Information Commissioner & the Government Legal Department [2019] UKUT 247 ACC said:-
"18...The public interest test requires the decision maker to analyse the public interest, which is a fact specific test turning on the particular circumstances of a case. The starting point is the content of the information in question, and it is relevant to consider what specific harm might result from the disclosure (Export Credits Guarantee Department v Friends of the Earth [2008] EWHC 638 paragraphs 26-28). The public interest (or various interests) in disclosing and in withholding the informationshould be identified; these are “the values, policies and so on that give the publicinterests their significance” (O’Hanlon v Information Commissioner [2019] UKUT 34 at paragraph 15). “Which factors are relevant to determining what is in the public interest in any given case are usually wide and various”, and will be informed by the statutory context (Willow v Information Commissioner and the Ministry of Justice [2018] AACR 7 paragraph 48). Clearly the statutory context in this case includes the backdrop of the Directive and Aarhus discussed above, and the policy behind recovery of environmental information. Once the public interests in disclosing and withholding the information have been identified, then a balancing exercise must be carried out. If relevant factors are ignored, or irrelevant ones are wrongly taken into account, then the decision about where the balance lies may be open to challenge (HM Treasury v Information Commissioner [2010] QB 563). If the public interest in disclosing is stronger than the public interest in withholding the information, then the information should be disclosed."
The Presumption (reg 12(2) EIR)
We kept this presumption in mind during our consideration of this appeal. It was held in Vesco -v- the Information Commissioner & the Government Legal Department [2019] UKUT 247 ACC that:-
“19. The third stage. If application of the first two stages has not resulted in disclosure, a public authority should go on to consider the presumption in favour of disclosure under Regulation 12(2) of the EIRs. It was “common ground” in the case of Export Credits Guarantee Department v Friends of the Earth [2008] Env LR 40 at paragraph 24 that the presumption serves two purposes: (1) to provide the default position in the event that the interests are equally balanced and (2) to inform any decision that may be taken under the regulations.
Advice & assistance (Reg 9 EIR)
Reg 9 EIR states that "(1)A public authority shall provide advice and assistance, so far as it would be reasonable to expect the authority to do so...". The EIR Code also says:-
There is no EIR equivalent to the ‘appropriate limit’ under section 12 of the FOIA. A public authority is expected to deal with all requests for environmental information. However, cost may be relevant when considering whether to apply the exceptions relating to ‘manifestly unreasonable’ or ‘too general’. Where the applicant makes a request that is clear but which involves the provision of a very large volume of information, and specifies a cost ceiling, the authority should consider providing an indication of what information could be provided within the cost ceiling. "
Role of the Tribunal
The Appeal is brought by reg 18 EIR and section 57(1) FOIA which provides that:-
“Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.”
and the Tribunal's role bySection 58 FOIA that:-
"(1) If on an appeal under section 57 the Tribunal considers—
(a)that the notice against which the appeal is brought is not in accordance with the law, or
(b)to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based."
We also had regard to Information Commissioner v Malnick and Advisory Committee On Business Appointments [2018] UKUT 72 (AAC) (see para 90) and NHS England -v- Information Commissioner and Dean [2019] UKUT 145 (ACC) (see para 10) where the UT said that the FtT exercises a full merits appellate jurisdiction and stands in the shoes of the Commissioner and decides which (if any) exemptions apply.
In Forstater v Information Commissioner and others [2023] UKUT 303 (AAC) the UT at para 40 said:-
"(1)...the FTT is required under section 58 of FOIA to decide independently whether the Information Commissioner’s decision was in accordance with the law. In doing so the FTT “must apply the law afresh to the request taking account of the issues presented at the hearing or identified by the First-tier Tribunal..."
the “ordinary presumption” is that it is for an appellant to prove their case. The burden will rest with the appellant except where statute expressly or impliedly provides otherwise: Khan v Custom and Excise Commissioners [2006] EWCA Civ 89; [2006] STC 1167 at [73.7]. Neither FOIA nor the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2008 contain any express provision about the burden of proof and neither by implication remove the ‘ordinary presumption’ either; and
however, the concept of the burden of proof is of secondary importance in tribunal proceedings which involve a full merits review, since to apply strict burdens of proof may prevent the tribunal from properly discharging its responsibility to decide the facts for itself and/or exercise any discretion afresh:..."
In Peter Wilson -v- The Information Commissioner [2022] UKFTT 0149 in which the FtT said that it was not the role of the FtT to "30...conduct a procedural review of the Information Commissioner’s decision making process or to correct the drafting of the Decision Notice.”
Request to Appeal (overview)
On 5 February 2024 the Appellant made the Request. The Council replied on 5 March 2024 and said (263) that it held the information requested but would not be disclosing it as it considered the Request to be (FOIA) vexatious. On 5 March 2024 (271) the Appellant requested a review. On 12 April 2024 (273) the Council provided the outcome of the review to the Appellant in which its position was maintained. On 21 April 2024 (278) the Appellant complained to the IC. The DN dated 12 November 2024 (5) in summary said:-
The Commissioner’s decision is that the Council is entitled to rely on regulation 12(4)(b) (manifestly unreasonable) to withhold the information requested in parts 1 and 3 of the request. He also finds that the Council complied with its obligations under regulation 9 of the EIR to offer advice and assistance."
The Appeal (overview)
On 16 November 2024 the Appellant commenced this Appeal (14). On 2 January 2025 the IC responded (101) and the Council (which had become a party on 27 December 2024) responded on 16 January 2025 (108). Thereafter on 27 January 2025 the Appellant replied (172), Ms Sheridan provided a statement dated 21 March 2025 (232) and the Appellant provided a statement dated 23 March 2025 (256).
The position of the parties
Response
When responding to the Request the Council also set out why they had reached the conclusion that it was manifestly unreasonable. It referred to three elements namely what it called the frequency of requests, the scope of the request and other complaints.
On frequency the Council referred to the 5 FOIA/EIR requests etc that it had received and that all related to the Appellant's concern with a planning matter with reference 17/01329/OUT. The Council said (265):-
"This is a significant number of information requests to receive from a single applicant, particularly when considering the context set out above, and the resources required to service your requests. This has meant that processing your requests, complaints and queries has impacted on the Council’s limited resources and detracted from service delivery."
As regards "scope" the Council, said:-
"Your repeated requests are borne from your dissatisfaction with the Planning department’s decision-making regarding planning application 17/01329/OUT. In all of the requests to date, the Council has provided you with all information that it holds under the scope of your request, completing system interrogating searches thorough reviews of files held by the Planning team. Each request has been met with an internal review, two of which became ICO complaints (in which the ICO upheld the Council’s position)."
"We consider that the continued requests relating to this planning application that you have a significant personal interest in indicates that your attempts to be disruptive, and to misuse the FOI and EIR request process as a means of demonstrating your dissatisfaction with decisions that have been made. This is disruptive to the provision of Council services."
The Council also referred to complaints saying (266):-
"We note that you have raised concerns directly with Information Governance, through the Council Corporate Complaints processes, and to the Information Commissioner’s Office. This is on the basis of your dissatisfaction with the decisions made by the Planning Department "
When seeking a review the Appellant said (271):-
"If you revisit my latest request you will see that it is for information I have not asked for previously.
As a public authority you are required to reply in accordance with the prescribed disclosure regimes.
I do not accept that my requests have been unduly onerous. It is not within your remit to refuse a request just because I have previously pursued a complaint. I have not previously asked for copies of the correspondence relating to compliance with the ecological and conservation issues."
In the Review the Council repeated much of its initial response but added for example (275):-
"As previously highlighted, there have been no material updates to the planning application in question, and the servicing of these requests has, in my judgement, impacted upon the Council’s resources and therefore has the potential to detract from core service delivery. I do not unfortunately agree with your assertion that your requests have not been unduly onerous.
You have also suggested that your request (reference 1096901) was incorrectly refused because the information requested had not been the subject of a previous request. Under section 14 (2) of the Act, a public authority is not obliged to reply to a substantially similar request from that person unless a reasonable interval has elapsed between compliancewith the previous request and the making of the current request. Information Commissioner Office guidelines state that a request is substantially similar if:
the wording is different but the scope of the request is the same; or
the scope does not differ significantly from that of the previous request.
In my judgement, your current request is substantially similar in scope to previous requests in as much as it, like those before it, relates to matters pertaining to planning reference 17/01329/OUT. I am also of the opinion that it cannot be said that a reasonable interval has elapsed between your requests, and this is further supported by the fact that there have been no material updates to the planning application in question for quite some time."
Complaint and the DN
In his complaint to the IC the Appellant said that the request was not vexatious and that (278) that 5 requests over 3 years was not excessive, requests for reviews were because they had not been dealt with properly, he had not previously asked for the correspondence relating to the ecological issues and the Request was limited and would not cause an administrative burden.
In the course of the IC's investigation the Council (Ms Sheridan) said on 30 August 2024 (300):-
"The primary member of staff who dealt with this planning application...no longer works with the authority and this was noted in earlier request responses to Mr Tilson i.e. EIR 9171 (IC-120032-F9M3) and 9091 (IC-120030-C7D7). From searches conducted as part of the tribunal that is currently ongoing, there are 2450 emails held on this ex employee’s account meaning that for someone to review these emails would take over 122 hours (on a basis of 3 minutes per email). It is also worth noting that unfortunately there is not one central mailbox for the Planning Inspectorate that a search could be conducted for in an attempt to reduce this number."
"In respect of part 1 of the request, I focussed specifically on Gary Featherstone, Tony Carter and Tony Carter Smith Associates, specifically in relation to the Design Two report and there have been 57,281 items found. It is highly unlikely that the vast majority of these will be relevant to the request, but for a colleague to review these emails would take 2,864 hours (on a basis of 3 minutes per email). This obviously does not account for any other recorded notes from the time which I appreciate was also requested in this part of the request."
"In respect of part 3 of the request, I ran a search for all emails held by Council officers specifically in relation to the Design Two report which has found 4,613 items. For a colleague to review these emails would take 230 hours (on a basis of 3 minutes per email)."
"to fulfil these two elements of Mr Tilson’s request would take roughly 3,094 hours(roughly 427 working days for staff members). This would take a far beyond reasonable proportion of Council resources to fulfil and would also have significant detrimental impacts on the Council processing other request if this were to be undertaken. It would also take away the Council’s resources to deal with other pressing matters, as well as general service delivery."
In this letter the number of requests was stated to be 8 and there being for example "429 emails from Mr Tilson".
This letter also refers to the Appellant's motive which she said (301):-
"...relates specifically to Mr Tilson’s dissatisfaction with decisions made by the Planning team in respect of that planning application and associated documents. Mr Tilson is of the opinion that the Council had a copy of the Design Two report that he hand delivered to the Council, which the Council has no record of receiving, but does have a record of receiving it via the Planning Inspectorate (much of this and more is currently being considered as part of the ongoing tribunal).
The requests made by Mr Tilson are, in my opinion, far beyond any general public interest in the land and the decision-making processes followed by the Council. These requests are clearly that of a personal nature as it affects Mr Tilson personally being connected to the land at the centre of the planning application. I believe this fulfils the element of there being an “underlying grievance” as opposed to merely a “similarity of subject matter..."
This letter also raised an issue of "harassment" when saying (302):-
"...whilst this request itself may not be intended to cause harassment and stress to staff, we do have knowledge that Mr Tilson is aware of a Planning team employee living very near to himself and the property referenced in the Planning application who he has been approaching and making feel uncomfortable. He has since made an FOI asking about their involvement in the planning matter. I believe this adds weight to the argument that this is far beyond a general public interest, and clearly serves Mr Tilson’s personal interest, and for decisions he was not satisfied with".
The IC's reasons for the DN have as their focus (8) the connection between reg 12(4)(b) EIR and the costs of responding to the Request as set out in the 2004 Regs. The DN says (10):-
The Commissioner notes that the Council has stated that it would need to review 4613 emails held within the email accounts of Council officers in order to provide the information requested in part 3 of the request. He considers the Council’s estimate of 3 minutes to review each of email and determine whether it falls within the scope of part 3 of the request to be reasonable. Therefore, the Commissioner accepts that it would take approximately 230 hours to provide the information requested in part 3 of the request.
Furthermore, the Commissioner notes that in order to provide the information requested in parts 1 of the request, the Council would also need to search for correspondence between the planning application applicant, their expert, the Council’s conservation officer and its ecologist. He considers that these searches would further add to the amount of time it would take to provide the information requested in this case.
Therefore, the Commissioner considers that complying with parts 1 and 3 of the request would place a disproportionate burden on the Council, both in terms of cost and resources. He is satisfied that parts 1 and 3 of the request are manifestly unreasonable and so regulation 12(4)(b) is engaged..."
On the PIBT (11) the IC referred to the loss by the Council of some information and the resulting increased need for openness and transparency, the interest in the proper functioning of the Council, its record keeping and the planning process, the significant burden on the Council and the issues being more in the nature of private issues for the Appellant rather than of wide concern.
On the presumption, the IC said (12) said that the balance of the public interest was notequally balanced and " This means that the Commissioner’s decision, whilst informed by the presumption provided for in regulation 12(2), is that the exception provided by regulation 12(4)(b) was applied correctly."
Grounds of Appeal
The Appeal refers to a number of issues (27-28). The first was that the Appellant said that he had not been notified by the Council or the IC about the "...change in exemption relied on by public authority" and that he had no opportunity to make representations in response to this prior to the DN. He said "It is my contention that this is not a fair process and as a result the Decision Notice should not stand." The second issue raised was that in his view he had not been offered advice or assistance and on the PIBT the Appellant said for example (28):-
"The ICO Decision Notice acknowledges that there is a public interest in ascertaining whether Local Authorities have exercised their powers correctly. They however say that operating a balancing exercise the required threshold is not satisfied suggesting that I am only seeking to establish a personal interest. This misunderstands the legal position. Local Authorities are required to comply with Heritage and Ecological Regulations and Statutes. The land in question was one of the last burgage garden plots in Morpeth incorporation a large pond which had been in existence for over 100 years. There were known to be amphibians in the pond with a distinct possibility of protected species."
"These are matters of public interest not only to me but to the other objectors and to the local community. To suggest that is merely my personal interest does not take account of legal framework. Decisions on ecological issues have a public impact. In this case there is also a suspicion of wrongdoing by the public authority"
"Where the balancing exercise is said to be close this should push in favour of the material being released to ensure transparency where public authorities have not exercised their legal powers correctly."
Responses
The IC's response (101) broadly mirrored the DN. The Council in its response (105) added little to that set out by Ms Sheridan in her letter to the IC referred to above. However, we did note reference to (114) exhibit NCC6 being a response to a FOIA request about a particular individual dated 8 August 2024 (162), accusations being made of deliberate concealment of information, their view on Reg 9 EIR and the change of exemption. On the PIBT and presumption the Council said (115):-
It is the position of the Second Respondent that the information requested relates to furthering a personal grievance of the Appellant rather than any wider public interest.
"25 In addition the clear burden on the authority to deal with the request and the continued use of the Information Rights regime to continue to raise issues over the relevant planning application, places a disproportionate burden on the Second Respondent and as such it would not be in the public interest to make a disclosure in this case.
The Second Respondent acknowledges that there is a presumption in favour of disclosure and a general public interest in transparency when dealing with planning matters and has considered the same however is in agreement with the Information Commissioner that particularly given the burden to the authority to make the disclosure, the balance is in favour of maintaining the exemption"
Reply
In January 2025 the Appellant filed a detailed reply (172-191) to the matters raised and generally. In it the Appellant:-
explained the background to his environmental issues and the concern about the failure to undertake an ecology assessment and provided a detailed history.
set out Government guidance of protected species.
made submissions about the issue of the change from FOIA to EIR and the absence of any Reg 9 advice and assistance (see 188-190) including by reference to the Code.
said for example (182):-
"For the Second Respondent to suggest that they must trawl through thousands of emails to check the position is totally disingenuous. They simply must check communications between a very limited pool of individuals...To check through such records would not be unreasonable and disproportionate. The suggested time estimate put forward in the ICO Decision Notice is based on a poorly conducted search. The Second Respondents should have promoted a discussion about how best to narrow down what could be supplied."
said that he was not "seeking to disrupt the working of the Council".
He also set out his response to the elements of Dransfield:-
he said (185-6) that he disputed the burden suggested by the Council and the 2 remaining questions were reasonable in nature "narrowly drawn" and sent to a "large public authority". In his view 5 requests in four years was not excessive and "...The total number of communications they claim need to be searched is not remotely proportionate to the limited request."
on motive he said that it was (186):-
"...to ascertain how the ecological matters were considered, if at all. The neighbouring house has now been built...This is not a challenge to the planning process. My requests are not motivated by a grievance but a desire for transparency to evidence compliance with the requirements Wildlife and Countryside Act 1981and Conservation of Habitats and Species Regulations 2017. These are matters of public interest."
on value and serious purpose, he said that the Request was not being used to further a personal grievance, that there was a wider value in the requested ecological and conservation information being made publicly available and:-
"the importance of compliance with the statutory regime to which the request relates, and the extent to which responding to the request would shed light on that issue";
and
"The decision of the Local Government Ombudsman looked at the question of potential maladministration and concluded that this was not the case. The Case Officer having indicated that any challenge to the Planning Inspectors Decision should have been by way of Judicial Review. The Ombudsman did not look at ecological issues. The Appellant submits that there is always value and purpose in establishing if public authorities have exercised their functions correctly relating to ecological and conservation issues. These are matters of great public interest."
He refuted the allegation of harassment (190).
On the PIBT and presumption (187) the Appellant said that the DN was wrong to decide that "...operating a balancing exercise the required threshold is not satisfied suggesting that I am only seeking to establish a personal interest" because:-
the Council was required to comply with the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2017.
(b) the land was one of the last burgage garden plots, it had included an old pond that may have contained amphibians and there had been no ecological survey and "Decisions on ecological issues have a public impact".
of the importance of the Council being transparent "...in demonstrating what actions it took towards ensuring compliance with the legal framework."
(d) the issues were of interest not only to the Appellant but also other objectors and more widely.
of what the Appellant called "...a suspicion of wrongdoing by the public authority" caused by "the history of reluctant late disclosure of relevant documentation after the intervention of the ICO and the Local Government Ombudsman.." being "suggestive of a pattern of deliberate concealment."
of the presumption in favour of disclosure and he says "Where the balancing exercise is said to be close this should push in favour of the material being released to ensure transparency. This is particularly important where there is a suspicion that public authorities have not exercised their legal powers correctly."
Statements
The Council and the Appellant both provided witness statements. They added little extra to the material and submissions already provided by the parties. Ms Sheridan for the Council ended her statement by saying (206):-
Whilst I acknowledge that the Council has changed its position from reliance upon section 14 FOIA to Regulation 12(4)(b) EIR based on guidance from the Information Commissioner’s Office, my considerations in application of the exception did not change. I have conducted thorough searches, and I am satisfied that to comply with the request would place a disproportionate burden on the local authority in terms of use of resources and cost and that the request is Manifestly Unreasonable in accordance with Regulation 12(4)(b) EIR, both in relation to cost and burden and on the basis of other factors. I have properly considered the public interest test as outlined above and have carefully considered the presumption in favour of disclosure, and I ask the Tribunal to find in favour of the decision of the Information Commissioner’s Office."
The Appellant concluded with (259):-
The Council’s statement acknowledges that there is a presumption in favour of disclosure. This should be the starting point. The supporting Guidance to the Regulations says that this should particularly be the case where there is a concern that a public authority has not fulfilled its duties. It is my contention that the history of this case demonstrates a pattern of evasion, delay and concealment designed to avoid the truth that identified outstanding ecological and heritage issues were not correctly addressed. The Council is a large public authority with significant resources they should be made to disclose the requested information. I ask the Tribunal to overturn decision of the Information Commissioner which was made without giving me an opportunity to address the exemption now relied on by the Council."
Our review
In considering this Appeal we kept in mind:-
the presumption in reg 12(2) EIR.
that "vexatious" and "manifestly unreasonable" are two tests with one meaning.
the guidance in Dransfield including importantly the need for a holistic approach.
that the date for assessment of the exception and the PIBT was on or about 12 April 2024 (O'Hanlon) but that in this case nothing would be impacted if it was as at the date of the initial response on 5 March 2024.
Change of position
We do not consider this to be grounds to allow the Appeal because:-
this is an Appeal from the DN in November 2024 which was based on reg 12(4)(b) EIR and the Appellant has had opportunities to make submissions and has done so.
reg 12(4)(b) EIR and section 14 FOIA involve the same considerations save for the addition of the PIBT and presumption about which the Appellant has made submissions.
even very late reliance on new exceptions/exemptions is typically allowed as seen in relevant legal authorities such as the Court of Appeal EIR case of Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606 (21 December 2011).
Was the Request manifestly unreasonable?
In our view seen holistically it was manifestly unreasonable and although the DN was focused on the costs of dealing with the Request it is clear that the Council considered the Request to be vexatious and then manifestly unreasonable based on burden and costs and wider considerations.
The Request in 2024 was at least the fifth made by the Appellant to the Council that arose from a particular planning matter that had started in 2017 and had been fully granted in 2021. It is also noteworthy in our view that although the reserved matters were later handled by the Council, the outcome of the outline planning application was the responsibility of the Planning Inspector and not the Council.
It may well be that (as requested by the Council's ecologist in April 2019) an ecology report was desirable or even required. However, if outline consent should not have been given without such a report (about which we make no findings) then that was an issue for the planning applicant and the Inspector and not the Council. Once the matter was in the hands of the Inspectorate the Council were not concerned about any such report as explained by the Ombudsman who said (169) that the Council:-
"...had not sought an ecological assessment in relation to the outline application because the developer had appealed to the Planning Inspectorate, who had then taken over the role of planning authority in relation to this application"
If the Appellant had wished to object to the outcome based on this or any other issue, then the remedy would have been to seek to challenge the Inspector within the relevant time limits. As the Ombudsman said (171):-
"It was for the Planning Inspector to decide if there was enough information to make a sound decision, and if Mr X believes the outcome was flawed, he can challenge the Inspectorate. In any event, we should not speculate what difference this would have made to the outcome."
It was not the Council's responsibility to assist the Appellant with this nor their fault if for whatever reason this did not occur. Again, as is said by the Ombudsman (171):-
"...I know of no legal obligation on councils to publicise the outcome of Planning Inspectors’ decisions, and this information is readily available on the Inspectorate’s website. From the documents provided by Mr X, I can see that he knew there was an appeal, he had the appeal reference and had provided information to the Inspectorate. The Inspectorate has a public access website where details of decisions can be found. It also has a customer support telephone number, which answers enquiries relating to appeals. In these circumstances, it is unlikely that further investigation by me would result in a finding of fault or a recommendation for a remedy for Mr X"
It is in this broader context that the specific themes in Dransfield have also been considered.
On motive and value the Appellant said he was not motivated by a desire to challenge the planning process or had any grievances. However it was a feature of this matter when seen with what we were told about the other previous requests that they all originated from his personal opposition to a planning application and concern with the process.
He said (186) that his motive for and the value of the Request was to ascertain how the ecological matters were considered, if at all, to check for compliance with The Wildlife and Countryside Act 1981 and Conservation of Habitats and Species Regulations 2017 to see if "public authorities have exercised their functions correctly relating to ecological and conservation issues" and to enable the ecological and conservation information to be made publicly available.
We do not consider the Request to have any material value when considered in terms of the objective public interest because:-
it relates to a planning matter that started in 2017.
it concerns the Appellant's neighbouring property.
the property has been built.
the planning application was dealt with by a Planning Inspector (not the Council) in December 2019 and there is a separate process to challenge such decisions which was not utilised in this case.
the issues raised have already been the subject of previous requests, complaints to the IC and at least two previous Appeals.
there has been a stage 1 and stage 2 complaint.
the issues were reviewed by the Ombudsman.
any value there was would, by the time of the review, have diminished over time.
As regards burden there is a difference of view between the parties as to whether to deal with questions 1 and 3 of the Request would take the very considerable time, resources and costs as asserted by Ms Sheridan (300) or that the 2 questions were narrow in scope, the Council's position "incomprehensible" and that they would not place a significant burden on the (large) Council.
The Appellant is a former solicitor at the Council until 2019 who was responsible for EIR/FOIA compliance (97) and therefore potentially will have more of an insight into the level of the task needed to respond to the Request than others without that experience. However, Ms Sheridan (300) reached her view after having considered how best to carry out a search and having used Microsoft eDiscovery to search for in- scope information which indicated that for example:-
as regards question 1 there were over 57,000 possibly relevant items found.
as regards question 3 there were over 4,600 possibly relevant items found.
The Tribunal has reviewed the searches and we give more weight to Ms Sheridan's view as she is the person with the more relevant and recent knowledge and is faced with the actual task at hand. We also consider her estimate, that it could take on average 3 minutes to check each item, to be a reasonable one especially when considering that each might need to be reviewed for relevance and whether reg 12(3) and 13 EIR applied.
We accept as Ms Sheridan says (301) that to respond would:-
"..take a far beyond reasonable proportion of Council resources to fulfil and would also have significant detrimental impacts on the Council processing other request if this were to be undertaken. It would also take away the Council’s resources to deal with other pressing matters, as well as general service delivery."
In our view this burden and the harm it would cause as described entitled the Council to refuse to respond on the basis it is manifestly unreasonable on its own but also particularly so when seen in the context of our conclusions on motive and value.
In considering burden more holistically we also we took the view that the Request had to be seen in the context of what had come before as set out above. While 5 requests in total (if it was 5) might not itself be evidence of unreasonableness by a course of dealing in our view that feature was present in this case when viewed against what we have concluded above.
As regards the question of harassmentas described in Dransfield Ms Sheridan says (238):-
"...whilst this request itself may not be intended to cause harassment and stress to staff, we do have knowledge that Mr Tilson is aware of a Planning team employee living very near to himself and the property referenced in the Planning application who he has been approaching and making feel uncomfortable. He has since made an FOI asking about their involvement in the planning matter. I believe this adds weight to the argument that this is far beyond a general public interest, and clearly serves Mr Tilson’s personal interest, and for decisions he was not satisfied with"
In the Council's response they say (114):-
"Although it is not suggested that the Appellant is deliberately seeking to harass staff, the Appellant does repeatedly make reference to particular members of staff who he believes were involved in the planning decisions and has previously made a request about a member of staff who is his neighbour and so also local to the planning development, asking for details of their involvement in the case, a copy of this request is included at NCC6. The Appellant has also made accusations that staff of the Second Respondent are deliberately concealing information"
We considered the issues raised, the numerous emails sent to the Council by the Appellant, the length of time the matter had been ongoing. In particular, we did not take lightly the Council's allegation that an employee is feeling uncomfortable having been approached by the Appellant and made the subject of a FOIA request.
We reviewed the Appellant's Reply in which this issue is refuted and concluded that in this Appeal to have been able to find harassment was a relevant feature would have required more compelling evidence (to which the Appellant could have replied) especially as the Council says that they accept no harassment was intended.
The PIBT (as at the date of review)
We agree that there is a public interest generally supported by the EIR presumption in favour of disclosure of environmental information including ecological information. There is public interest in there being openness and transparency about how a public authority functions and exercises it power and in seeing if it acts in compliance with relevant laws and procedures when making decisions including as regards planning matters and ecological issues.
The background to this appeal includes questions for the Council in the way some of their records have been stored and its ability to locate information. There have been instances where its first response to a request has been to say the information is not held or it is held on the relevant public portal where later it has conceded that neither was correct. This increases the public interest in favour of disclosure.
While the particular planning application had a personal connection to the Appellant there is a wider more general public interest for others living locally, within the authority area and more widely.
In the Appellant's reply (187) he referred to "a suspicion of wrongdoing by the public" and to the suggestion of there being "a pattern of deliberate concealment" by the Counciland he said "...where there is a suspicion that public authorities have not exercised their legal powers correctly". We also agree that where there is evidence of wrongdoing which the requested information could help to reveal or explain the public interest is further strengthened.
However, the strength of the public interest is considerably reduced in this case because: -
it was the Planning Inspector not the Council that granted the planning application.
the matter dates from 2017 and the house in question has been built.
there have been a number of previous requests resulting in some information being disclosed.
related concerns have been raised with the Ombudsman and a decision given saying no fault was found with the Council.
the "wrongdoing" issues raised by the Appellant are suspicions he has and says others have but (i) on the evidence we could only see they were his suspicions (ii) they were stated in guarded terms (iii) the planning decision was not made by the Council (iv) there has been a stage 1 and 2 complaint to the Council (v) there has been a complaint on this and other requests to the IC and (vi) the Ombudsman has reviewed the complaint and did not identify wrong doing by the Council.
The strong public interest against disclosure relates back to our decision that to respond would place a very considerable and disproportionate burden on the Council and would cause the harm described by Ms Sheridan (301) in circumstances where the value of that disclosure is minimal and seen holistically the Request was manifestly unreasonable.
In our view the public interest in disclosure when reduced considerably as set out above and tested against the public interest in not requiring the Council to respond to the manifestly unreasonable request results in the balance being clearly in favour of the maintenance of the exception.
Presumption (reg 12(2) EIR)
We kept this presumption in mind throughout and it informed our conclusion on the exception and the PIBT. As seen above this was not a case where the balancing exercise was equally balanced.
Advice and assistance (Reg 9 EIR)
We considered the submissions of the parties as seen for example in the Council's response to the Request (266), in its letter to the IC (301) and response to the Appeal (115), in the DN (12) and in the Appellant's Reply.
It was the Council's view that the Request was manifestly unreasonable not only because of the burden/costs analysis but more widely including the course of dealing and lack of requisite value. Therefore, even if after further dialogue an agreement could have been reached that necessitated a considerably narrower search the Council would still have considered the Request to have been manifestly unreasonable.
It was therefore not reasonable to expect the Council to provide advice and assistance.
Decision
It is accordingly our view that the exception applies and the DN is accordance with the law. The Appeal is dismissed.
Signed Judge Heald Date: 16 September 2025