Case Reference: FT/EA/2024/0478
Information Rights
Before
JUDGE C HUGHES
MEMBER S COSGRAVE
MEMBER P TAYLOR
Between
HOMESEPTIC LTD.
APPELLANT
– AND –
[1] THE INFORMATION COMMISSIONER (IC)
ENVIRONMENT AGENCY [2]
RESPONDENTS
Cases
Dransfield (FOIA) UKUT 440 (AAC) and Craven (EIR) UKUT 442(AAC)
Decision: The appeal is Dismissed
REASONS
The Appellant (as is suggested by its name) is a commercial organisation concerned with the provision of sewerage services to properties which are not connected to the installations of the water companies; on his account there are approximately one million such properties. The Second Respondent is a public body concerned with many aspects of the protection of the environment and in particular with the monitoring and protection of the quality of water bodies – rivers streams and groundwater. One of the EA.’s roles is to issue permits for the discharge of material from sewage installations to the environment. The framework for this is laid down in statutory instruments made by the Secretary of State for the Environment, Food and Rural Affairs. Appeals against decisions of the EA with respect to these permits are to the Planning Inspectorate. One of the services the Appellant provides for its clients is applying for such permits and there has been extensive contact between the Appellant and the EA over the years.
On 22 February 2023 the director of the Appellant wrote to the EA:
To whom it concerns,
Please raise a freedom of information request for the following, all of which has previously been requested and not provided. We expect this to be provided within 20 working days 21/03/23
[redacted reference number and address 1]
•* We require a working and accessible version of the model used by the groundwater team that calculated a 10mg/l l-N as ammoniacal nitrogen limit to be enacted. This should have no hidden or protected cells or hardcoded formula. The Groundwater team have said they calculated this, let us see it as requested.
We require a copy of internal emails, both relating to the groundwater and permitting teams relating to this application.
[second number and address]
• * We require a copy of internal emails, both relating to the groundwater and permitting teams relating to this application.
The Permitting team's introduction of 5-day deadlines on requests for information.
• * All internal emails relating to the introduction and purpose of this deadline.
• * Copies of the presentations used to inform staff of this change and its benefits etc.
On 12 May the EA responded
Due to the large amount of files we needed to get across to you, I have sent these via ShareFile in 3 sections.
• * 1/3 - The Permitting team’s introduction of 5-day deadlines on requests for information.
• redacted address 1.
• redacted address 2.
Please could you confirm safe receipt of these documents and do not hesitate to get in touch if you have any problems downloading anything, or have any questions.
On 12 and 18 September the director of the Appellant made a complaint:
We have on several occasions requested an unprotected auditable copy of the Groundwater risk assessment sheet associated with application: [redacted address 1]. We have intentionally not been provided with this despite our clear and repeated statements that the file had been password-protected which prevents us from auditing and analysing it. In the condition the spreadsheet was supplied it has no value. The Environment Agency and the Permitting team have repeatedly denied and ignored this statement of fact and intentionally not provided it to us, including under a Freedom of Information request. Despite the facts being obvious to even someone with basic Excel knowledge, we have been forced to engage an independent Excel expert who concurs with our assessment (please see the attached) that the file is not auditable. We will be dealing with the issues, errors, ignored queries and failure of the model to support the numerical limit imposed separately.
The Environment Agency have Intentionally attempted to mislead us….
Intentionally ignored our requests for a working auditable copy of the spreadsheet throughout the application process (IRFI 21), which is part of the repeated pattern of behaviour encountered by applicants….
The reason for the Permitting team intentionally misleading us is that the Groundwater risk assessment was known to them to be materially erroneous, which they have intentionally tried to hide because this process, which in their position as a regulator has driven wholly unnecessary Environmental Damage, Damage to Human Life, potentially premature deaths and financial losses, which just for our company are in the £100,000's.
The costs of attempting to get to this point are £3k+VAT which we expect to recompensed with.
All the best
Andy Foreman
On 12 September a response was sent from the EA:
It is my understanding that the Groundwater Risk assessment sheet for Little Acre was part of the Freedom of Information request response.
I have attached the sheet, which appears to me to have no password protection on it.
I have previously pointed you to the Ground water risk assessment - infiltration worksheet which can be accessed from H1 annex 15: infiltration worksheet - GOV.UK (www.gov.uk).
On 15 September the EA wrote:
The only thing I can suggest is to check that you are "enabling editing" on opening the spreadsheet. Also that the blue cells are the ones that allow data entry.
19 September a response was sent by the EA:
To recap - we couldn't agree on the password protected status of the Groundwater Risk assessment spreadsheet tool. The versions you have been presented with are the publicly available versions and the working version for the Little Acre permit application. Data scenarios can be performed on these versions via the blue cells.
Your interest is on the calculations, which the spreadsheet performs to arrive at the values in the grey "calculated" cells.
Each Grey cell includes a formula showing how the value has been derived, plus there is some commentary on where values have been brought from elsewhere in the spreadsheet.
I acknowledge that you are asking for a completely open version of the spreadsheet and I am investigating whether that is possible. Please be aware that it may not be, because of practicality and reasonable time and effort required.
I am sorry that our phone call didn't focus on your specific interest in the calculations. From previous email it may be around calculation of infiltration rates. If there any specific calculations that you want to know how they are derived, please let me know.
Other responses in progress:
….
On 20 October the Appellant complained to the IC. The IC investigated. During the course of the investigation the EA provided further information and explanations. The focus of the IC investigation was (Decision Notice paragraph 4)
The complainant’s ICO complaint only relates to one part of the request, where the complainant requested a “working and accessible” version of the model used by EA as part of its assessment of an environmental permit application. The complainant stated that this model “should have no hidden or protected cells or hardcoded formula”.
On 10 June 2024 the IC published decision notice IC-271898-T1Y5. This confirmed that the request was for environmental information and that the EA was entitled to rely on an exception to the duty to disclose environmental information regulation 12(4)(b) (the ‘manifestly unreasonable’ exception). In coming to this conclusion the IC considered questions of the value and purpose of the request, noting that only the Appellant appeared to be concerned about the issue and accepting the EA’s explanation:
35 EA argued that disclosure of the spreadsheets without password protection wouldn’t be in the public interest, as it would remove trust and confidence in EA’s capability to conduct permit determinations accurately, fairly and independently, for the benefit of permit holders and the environment. It would mean EA having to check the calculations used by permit applicants, extending the application process and impacting EA’s ability to process the type of environmental permits in question. EA also noted significant cost implications of such a disclosure.
He noted that there were other means of challenging permit determinations and concluded that the request had little value.
He noted the rising number of requests and complaints from the Appellant created a burden for the EA and that (DN paragraph 43)
The complainant themselves provided the Commissioner with a document indicating that between 16 and 25 January 2024, the complainant requested “all documents, files and emails” or “all documents, emails, files, calculations and worksheets” relating to a total of 10 environmental permit applications
In considering the motive of the request the IC concluded
56 Ultimately the Commissioner considers that there’s an element of attacking EA over policies and decisions the complainant disagrees with.
The IC found that a degree of harassment and distress was experienced by EA staff at the time this request was made (DN paragraph 59)
Given the impact of the requests and their small value (60-63) the IC found the exception was engaged (Paragraphs 60-63). He found that while there was some interest in disclosure it would primarily serve the Appellant’s private interests and the request was properly characterised as manifestly unreasonable (paragraphs 64-74).
In its appeal the Appellant argued that there was a clear public interest in disclosure, the request was not burdensome. The Appellant provided an explanation of a development in the regulatory framework for discharges from small domestic systems introduced by the General Binding Rules with effect from January 2015 indicating that it considered that they were inappropriate. The Appellant argued that there was not a significant burden imposed on the EA by the requests, that the material supplied to it was inadequate to assess the calculations carried out by the EA. He acknowledged that EA had explained that they were implementing policy determined by DEFRA “[EA] are effectively just the prison warders following orders”
In resisting the appeal the EA drew attention to the risks and additional work involved in checking calculations in each permit application which would arise if the material were released in an unprotected form, it was reasonable not to provide advice and assistance A user manual provides a full explanation of the calculations, accordingly no benefit flows from publication of the software without protection, but there are risks are created that the protected cells could be tampered with making the permitting process more difficult. It addressed the burden of dealing with the multiple requests from the Appellant and the failure to follow the proper route for challenging the EA’s decisions. Corresponding with the Appellant’s usually technical, lengthy, detailed complaints and overlapping requests places a significant burden on the permitting team and distracts it from delivering its core functions. In considering the motive for the request the EA contended:
It is clear the Appellant seeks the information to challenge the Agency’s use of the Spreadsheet as part of the SSD groundwater permit determination process. As we have previously informed the Appellant this is a legal / policy matter for the Department of Environment and Rural Affairs (Defra) which the Appellant is free to pursue or challenge by way of an appeal with the Planning Inspectorate.
It further argued that:
The Agency is now at a point where it can no longer continue to respond to the Appellant’s request for information relating to the Spreadsheet. This is due to the unjustified level of disruption, irritation and distress it is causing staff particularly those individuals who are ultimately tasked with providing a response (to general correspondence, freedom of information requests, internal reviews, complaints and Subject Access Requests received from the Director of Homeseptic Ltd).
Witness statements from the EA
In her witness statement Ms Abrahams Customer Coordinator within the Permitting Customer and Engagement Team set out the impact of the Appellant’s behaviour :
Responding to this volume of correspondence has taken up a very substantial proportion of my workload, diverting my attention from other customers and core duties. It has also placed a significant burden on my manager, who has had to step in, and support work I was unable to complete due to the demands of this case.
The repetitive and unrelenting nature of these interactions has had a serious personal impact. I have experienced stress, anxiety, and emotional fatigue, particularly due to the anticipation of further emails or requests and the tone of which they are written. The constant challenge to our responses — no matter how carefully considered or complete — has been difficult to manage.
Mark Maleham, the water quality operations manager who leads 65 staff explained:
I first became aware of Homeseptic in July 2022, when I supervised a number of existing complaints they had lodged regarding permit applications. This continued through to September 2023, and I was also involved with the appeal Homeseptic lodged with the Planning Inspectorate, on behalf of its client and the permit applicant Mr Nicoll.
Homeseptic followed the correct procedure in lodging the complaint with the Planning Inspectorate as this is the correct course of action if an applicant is not satisfied with a permit application decision. However, it was the constant correspondence that we received during this time that placed a considerable burden on my team. Myself, members of my team and other colleagues, then embarked on an intense 9-month period which covered the appeal to the Planning Inspectorate, multiple requests for information made by Homeseptic some relating
to this appeal. We also received complaints, and requests for information relating to other permit applications and decisions as well as a subject access request. I consider this all stems from Homeseptic not agreeing with the EA on the issue of the General Binding Rules, interpretation of British Standard drainage fields and the use of a risk assessment infiltration spreadsheet in the permit determination process.
Homeseptic has been informed on many occasions that our permit determinations are in accordance with the relevant rules and regulations and therefore, we are unable to change our position. Further, there is a real risk that should the information be made available in the requested format this would result in my teams workload increasing significantly as they will not be able to rely on the spreadsheets provided as part of the permitting application process without checking the set formulas have not been altered. This will place an extra burden on the team.
I have informed Homeseptic that the Environment Agency cannot assist with their underlying grievance, but this has made no difference, and they continue to correspondence on the issue which is causing disruption and irritation in my team as well as distress to me and my staff…
Sometimes as a consequence of having to set aside time to address the issues raised by Homeseptic, I find myself having to deprioritise support to my direct reports and other staff. This is the aspect that dismays me the most and strikes at my core values and beliefs and causes the biggest upset to my current working life…
I have had to make my manager, Faye Charlesworth (Permitting Deputy Director) aware of the negative impact on my wellbeing dealing with Homeseptic’s correspondence has had on me. I recall that on a particular occasion to illustrate the effect it has had on me told Faye how on a particular day after dealing within Homeseptic’s FOI requests, combined with managing my team and dealing with other applicants, I needed every kilometre of my cycling commute home to decompress from my work
Joanne Chriscoli, a Permitting Officer at the Environment Agency stated:
The persistent volume of requests, justifications and challenges, coupled with unwarranted personal accusatory insinuations relating to how responses are provided, has contributed to increased stress and anxiety. This stress and anxiety has lead to me seeking support from my Team Leader and also speaking to my GP.
Consideration
The analytical framework for considering whether an information request is manifestly unreasonable draws on the Dransfield analysis of the related concept of vexatious in s14 FOIA. burden (on the public authority and its staff); the motive (of the requester); the value or serious purpose (of the request); and any harassment or distress (of and to staff). It is also essential to consider the balance of public interest between disclosure and withholding and to apply the presumption in favour of transparency.
It may be noted that there is ample material within the bundle of comprehensive attempts by EA to provide assistance and information to the Appellant (eg letter page 83-85). On one occasion when the Appellant pursued the appropriate response to an adverse decision, an appeal to the Planning Inspectorate. In the information supplied to the Planning Inspectorate by the EA a detailed explanation was provided why the Appellant’s solution was inadequate (page 384). That appeal was not pursued to its conclusion. However, the Appellant is intransigent in arguing for his solution, even though it does not meet the requirements of the relevant regulations – the legal requirement.
Addressing first the burden on the EA it is clear from the witness statements it has provided that the request pattern from the Appellant consumes a substantial amount of the resources of the EA. Furthermore the witnesses address the stress and anxiety which this Appellant causes, - an example of the approach is set out in paragraph 4 above – the accusations included are very likely to cause anxiety and distress in the staff who receive them.
In addressing the value of the request, although the Appellant clearly values it highly the issue is the value to the public. Here a paradox emerges – the information, through the user guide and the examination of the programme is already available to the public and there is no public clamour for it, only the pressure from the Appellant. The claim that an “auditable” copy should be released is misleading. The information has been provided which would enable a competent user of the system to recreate and check the performance of the system – however disclosure as requested would create a significant risk of a manipulated but apparently authentic version of the material being circulated (since disclosure is to the whole world) creating risk and a significant further burden of checking each application to a far greater extent than is necessary now.
The Appellant has clearly indicated that this is a challenge to the policy underlying the arrangements, rather than an attempt to inform public discourse, a policy which is in any event that of the Secretary of State, not the EA.
The balance of public interest falls decisively in favour of non-disclosure and the presumption in favour of disclosure does not assist the Appellant. In considering a case such as this all the circumstances need to be considered in reaching what is ultimately a value judgement as to whether the request in issue is manifestly unreasonable in the sense of being a disproportionate, manifestly unjustified, inappropriate or improper use of a statutory right. This is a clear case of an improper use of EIR.
The appeal is dismissed.
The rules of this tribunal give the tribunal power to award costs where the bringing or the conduct of a case is vexatious. The tribunal invites the Respondents to consider whether to make a costs application.
Signed Date:
Hughes 18 October 2025