John Parker v Information Commissioner

This appeal concerns seven requests (the “Requests”) for information which the Appellant made of Tendring District Council (the “Council”) between 2 June 2024 and 1 July 2024. In broad substance, those requests concerned various planning matters and disputes within the Council’s local area, largely in relation to Henderson Park which has been the subject of property development and where the Appellant had purchased a property. The precise scope of each of the Requests is set out in full at paragraph 9 below.

The Council responded to all of the Requests on 3 July 2024. It addressed them under the scope of the Environmental Information Regulations 2004 (the “EIRs”). The Council refused to respond to the Requests relying on s.12(4)(b) of the EIRs on the basis that the requests were manifestly unreasonable.

The Appellant complained to the Commissioner about the Council’s response to the Requests. In a decision notice dated 19 December 2024 (Ref IC-327063-B5R3) (the “Decision Notice”) the Commissioner substantively dismissed the Appellant’s complaint and held the Council was entitled to rely on s.12(4)(b) of the EIRs to refuse to respond to the Requests. The Commissioner did find that the Council had breached r.5(2) of the EIRs by failing to respond to multiple requests within 20 working days.

On 9 January 2025, the Appellant appealed the Decision Notice to the Tribunal. He contends, amongst other things, that the Council is not entitled to rely on s.12(4) of the EIRs in respect of the Requests. The Appellant seeks a variety of outcomes, which include not only asking the Tribunal to set aside the Decision Notice, but also include asking the Tribunal to make various declarations or orders in respect of a number of planning applications and property matters (the “Additional Outcomes”).

On 20 May 2025, Judge Armstrong-Holmes decided that the case will be decided without a hearing. It was determined on the papers by the Panel and we decided that this was a fair and appropriate way for the issues to be determined.

By application dated 31 July 2025, the Appellant has also sought case management directions asking the Tribunal to direct the Information Commissioner’s Office to instruct its Criminal Investigation Team to recover the audit log file from the Council or alternatively to order the Council to provide an unredacted copy of the audit log to “verify allegations of document manipulation”.

Sitting as a Judge alone, I have dismissed the application made by the Appellant for the reasons set out specifically at paragraphs 30 to 33 below.

Sitting as a Panel, we have collectively (and unanimously) decided to dismiss the appeal. This is because we have decided that the Decision Notice was in accordance with the law and we agree that the Council is entitled to rely on s.12(4)(b) of the EIRs to refuse the Requests. Our reasons are set out in further detail for this conclusion below.

The Requests which the Appellant made of the Council and which are the subject of the Decision Notice are as follows:

The Council responded collectively to the Requests on 3 July 2024 and relied on s.12(4)(b) of the EIRs to refuse to respond to each of the Requests. It explained that it considered the Requests to fall within the scope of this section because they were “becoming excessive, harassing the authority [and] imposing a significant burden”. The response attached a table setting out the Requests which the Council stated “evidences the high volume and frequency of [the Appellant’s] correspondence to the Council under EIR along with the persistent nature of the subject matter. The public interest in maintaining this exception lies in protecting the Council from disproportionate burden and an unjustified level of distress and disruption in handling such information requests. Dealing with manifestly unreasonable requests strains resources and obstructs the Council from delivering mainstream services and answering other information requests. The Council does not believe that your requests are an attempt to obtain information of value that would benefit the wider public, but instead views your requests as an attempt to seek information serve private interests only. Your requests are demonstrating unreasonable persistence, and this has been determined as an inappropriate use of the public authority’s resources and a misuse of the EIR legislation.”

The Appellant requested an internal review on 9 July 2024 and contended that each of the Requests was not manifestly unreasonable. The Council maintained its position on internal review. The Appellant complained to the Commissioner on 19 August 2024.

The Decision Notice substantively rejected the Appellant’s complaint. For the purposes of this appeal, the main points set out in the Decision Notice are as follows:

The Appellant has appealed the Decision Notice. His grounds of appeal can be summarised as follows:

In Box 8.1 of the Appeal Form, in addition to asking for the Tribunal to issue a substituted decision notice stating that the Council cannot rely on r.12(4)(b) of the EIRs, the Appellant seeks the following Additional Outcomes:

In a letter dated 11 February 2025, the Council declined to be joined as a party to the appeal on the basis that there was “little or nothing it could contribute to the progression of this matter."

The Commissioner filed its response to the Appeal on 20 February 2025. He opposes the appeal for the reasons substantively set out in the Decision Notice.

The powers of the Tribunal are set out in s.58 of the Freedom of Information Act 2000 (“FOIA”). S.58 applies equally to the EIRs by virtue of r.18 EIR. Accordingly, under s.58, the role of the Tribunal is to consider whether the Decision Notice was in accordance with the law or to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently.

If the Tribunal considers that the notice against which the appeal is brought is not in accordance with the law or, if it 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. In any other case, the Tribunal shall dismiss the appeal.

The Tribunal must consider whether the provisions of the applicable information rights legislation (be that FOIA or the EIR) have been correctly applied and is not bound by the Commissioner’s views or findings but must arrive at its own view, giving such weight to the Commissioner’s views and findings as it deems fit in the particular circumstances - Guardian Newspapers & Brooke v Information Commissioner and BBC(EA/2006/0011 & 0013) at [14(3)].

The EIRs were made to implement EC Directive 2003/4/EC(2) on public access to environmental information. The directive gave effect to the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. This legislative history and context underlines the importance of access to environmental information and to hold authority to account on the important issues the environment raises for contemporary society – see Davies v Information Commissioner [2024] UKFTT 1017 (GRC) at [32] – [33] and Vesco v Information Commissioner [2019[ UKUT 247 (AAC) at [13] – [14].

R.5(1) of the EIRs requires a public authority to make environmental information (as defined in r.2(1) of the EIRs) available on request, subject to various exceptions which may be applicable in a particular case. R.5(2) provides that following a request, the information should be made available as soon as possible and no later than 20 working days after the date of receipt of the request.

R.12 of the EIRs addresses exceptions to the duty referred to in the paragraph immediately above. These grounds must be interpreted restrictively and having regard to the public interest served by disclosure – Vesco at [16].

One of the possible exceptions is the duty under r.12(4)(b), which allows a public authority to refuse a request for environmental information which is manifestly unreasonable. There is a three stage test for the application of this exception – see Vesco at [16]:

In the conjoined cases of Dransfield v Information Commissioner and Devon County Council and Craven v Information Commissioner and DECC [2015] EWCA Civ 454 at [7] and [78], the Court of Appeal concluded that “to all intents and purposes” r.12(4)(b) of the EIRs had the same meaning as s.14 of the Freedom of Information Act 2000 (“FOIA”), which applies where a request is vexatious.

However, while the principles behind manifest unreasonableness in the EIRs and a vexatious request under FOIA may be substantively similar, the overall test is not the same. This is because, a public authority withholding information under r.12(4)(b) EIR must also apply a public interest test and the presumption in favour of disclosure – as the Upper Tribunal explained in Vesco at [16], this means that there are “more hurdles to jump before a public authority may legitimately refuse a request for environmental information”.

In Vesco at [17] the Upper Tribunal set out the approach to consider whether at the first stage, a request is manifestly unreasonable. The starting point is whether the request has no reasonable foundation, that is 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 hurdle of satisfying the test is a high one. It may be helpful to consider the following factors (i) the burden on the public authority and staff, since one aim of the provision is to protect the resources of the public authority being squandered; (ii) the motive of the applicant – a malicious motive may point to vexatiousness, but the absence of a malicious motive does not point to a request not being vexatious; (iii) the value or serious purpose of the request; and (iv) the harassment or distress of staff. However, these are not an exhaustive checklist and other factors may also be relevant. These can include the nature, breadth and pattern of previous requests. In particular:

“The Tribunal’s fact finding powers may be necessary when evaluating relevant factors; for example evidence might be led about why the information is sought, the amount of time likely to be required to comply with a request, the cost of doing so, and any prejudice on the public body’s other duties if complying with the request.”

A holistic approach is required when assessing whether a request is manifestly unreasonable, taking account all of the circumstances of the case – see Smith v Information Commissioner [2025] UKFTT 00711 (GRC) at [41] – [44].

If it is established that a request is manifestly unreasonable, the public authority must then consider the balance of the public interests between disclosure and refusal. Application of this test may result in an obligation to disclose, even if a request is manifestly unreasonable. The public interest requirement is a fact sensitive test turning on the particular circumstances of a case. The following principles were summarised by the Upper Tribunal in Vesco at [18]:

The third stage only arises if the first two stages have notresulted in disclosure. This requires a public authority to consider the presumption in favour of disclosure. This presumption serves two purposes: (i) to provide the default position in the event that the interests are equally balanced and (ii) to inform any decision that may be taken under the EIRs – Vesco at [19].

Prior to determining the substantive appeal, I first address the Appellant’s application dated 31 July 2025. This is an application which makes the following points:

In support of his application, the Appellant has also attached an email exchange between the ICO and him relating to the issues in the application. It is apparent from this email exchange that the ICO’s Criminal Investigation Team had decided not to investigate a complaint made about the Council by the Appellant relating to data in a Xerox machine. The ICO explained that there were two factors for this decision. First, the length of time since the document was passed means it is less likely that the machine would still hold the data required for an investigation, and indeed the machine may also have overwritten the data since 2024. There is a possibility that “the document was signed and scanned onto the system in 2022 but retitled in 2024 for the purpose of the request.”

Some further information about the background to this rather cryptic issue is set out in the Appellant’s email to the Commissioner on 21 July 2025. It is also addressed at paragraphs 26 to 33 of the Appellant’s witness statement. It is apparent that the issue of this log apparently relates to a request for information made on 10 May 2024. The Appellant was concerned about some of the data associated with a document and sought an audit log file. The Council provided an updated document, which led the Appellant to complain that the updated document had been altered in breach of s.77 FOIA and he requested that the ICO conduct a criminal investigation. The Appellant contends that this document is “critical” to the Appellant’s case that the Council was engaged in malpractice.

I have refused the application for the following reasons:

We have considered an open bundle of 569 pages as part of this appeal. The Appellant has provided a witness statement in support of his case dated 25 May 2025. We have taken into account all of the material in the bundle in reaching our decision, although it is not necessary or proportionate to refer to all or indeed much of the material in setting out reasons for refusing the appeal.

We begin by addressing two preliminary issues raised by the Appellant to challenge the Decision Notice in his first and second grounds of appeal.

We consider that the substance of the other part of the first ground of appeal (that the Commissioner did not apply the statutory tests), the third, fourth and seventh grounds of appeal is that the Commissioner was wrong in law to uphold the Council’s reliance on r.12(4)(b) to refuse to comply with the Requests, including for the reasons given in those respective grounds of appeal.

We reject this central part of the appeal. We consider that the Decision Notice was in accordance with the law and that the Commissioner was entitled to find that r.12(4)(b) EIR was correctly relied upon by the Council.

Having applied the legal principles set out at paragraphs 20 to 29 above, we have reached this conclusion because we find that (i) each of the Requests was objectively manifestly excessive within the meaning of r.12(4)(b) of the EIRs, (ii) the public interest in maintaining the exception outweighs the public interest in disclosing the information in all the circumstances of the case and (iii) the presumption in favour of disclosure does not mean that the requested information should be disclosed.

The starting point for our reasons for these conclusions is the value of the information sought in each of the Requests. We have concluded that the public interest in the Requested Information for each request (and also collectively) is limited and confined. This is for a number of reasons:

The second key issue is that of the burden on the public authority as this is a central plank of the Council’s position. We accept that the Council’s evidence that each of the Requests imposes a disproportionate burden on it.

In this regard, the Council is entitled to look at the pattern and burden of each of the Requests collectively. They clearly form a pattern of repeated, multifaceted requests often made on a daily or near daily basis. The seven requests which the Appellant made which are the subject of the Decision Notice are seven requests made in under a month between 2 June 2024 to 1 July 2024. These seven were part of nine requests made between 23 May 2024 and 9 July 2024, all of which in whole or in part relate to the same planning and property dispute. The Council’s evidence which we accept is that these repeated requests place an unacceptable burden on the limited resources of the Council and risk diverting resources from its other legal obligations and functions.

What will be a proportionate or disproportionate use of resources will depend on the nature, scope and pattern of the requests and the resources of the relevant public authority. A central government department is likely to be expected to have greater resources to address multiple requests from a single individual than a single parish council. This is a case where the public authority is a small one with confined and finite resources. In this case, we are satisfied that the intensity and repetition of the requests will place a very significant burden on the Council. A single well- focused request is far less likely to be manifestly excessive – see by analogy Parker v Information Commissioner [2016] UKUT 0427 (AAC). In contrast, in this case, these numerous requests in a very short period bear the hallmark of initial responses begetting further requests and a continuing cycle.

Moreover each of the Requests is significant in the scope of the information which it seeks. Many are multifaceted - see for example the First, Second, Fifth and Seventh Requests, so in reality that are substantially more than simply seven request for the Council to address. We therefore accept the Council’s case that on the evidence before us, it is unlikely that this will cease and indeed is likely to continue. As in Dransfield itself, we consider this a significant burden borne out through the breadth and pattern of requests as a powerful, but not determinative factor in the evaluation of whether a request is manifestly excessive.

A third issue which may arise in a case is the issue of motive. The Appellant himself raises this in his third ground of appeal, where he contends that the Decision Notice was premature because he had not yet determined the lawfulness of a response by the Council to an earlier request – EIR Request 356 which was relevant to his motive. It is ultimately a matter for the Commissioner to determine complaints to him in the appropriate manner and this does not give rise to an error of law in this Decision Notice.

More substantively and in any event we do not consider that, objectively judged, request 356 assists the Appellant. On the contrary, we consider that it undermines his case on appeal. Request 356 was a request made by the Appellant on 10 May 2024 for information about specific individuals involved on the part of the Council within the team responsible for planning. It was responded to substantively on 22 May 2024. In response, the Appellant engaged argumentatively with the Council, demanding the underlying information held and seeking further information. Amongst other things, in his email of 24 June 2025, he accused the Council of engaging in just “another delaying tactic”. It may well have been the case that the Council had not supplied the original underlying documentation which the Appellant had originally requested. However, in light of the substantive response which the Council undoubtedly provided to the Appellant within a fortnight of his original request, we see no reasonable objective foundation for the Appellant’s allegation of improper motivation. Mistake or oversight does not equate to bad faith. Nor does legitimate disagreement on issues of judgment or law. While the process of obtaining information under FOIA or the EIRs may be a slow and frustrating process, an undue readiness to make allegations of bad faith or improper motive is unlikely to assist a requester. We consider this to be a case in point.

As the authorities show, the absence of a malicious motive does not mean that a request is not vexatious or manifestly excessive. It is not the Council’s case that the Appellant had a malicious motive and we do not accept that he did have such an improper motive. It is clear from the documents filed by the Appellant such as that headed “Claimant’s reasonable suspicion of wrongdoing” that he genuinely believes in the issues he is exploring and their importance. However that same document shows a particular fixation on one particular issue in respect of which the Appellant himself states that “there is something not quite right with the responses the Claimant [sic] has been getting some considerable confusion over who was delegated to approve planning matters if anyone.” That document engages in detailed fashion with this narrow issue and then elevates the argument to a basis for a reasonable suspicion of wrongdoing.

While we do not have the ability to make detailed findings about the underlying issues (and this Tribunal is not the vehicle for a planning inquiry), we do not consider that the seventh ground of appeal advances the Appellant’s case. This is because he has not adequately demonstrated that any of the requests materially enhance the public’s understanding on these issues. Indeed, in light of the unequivocal assertions of wrongdoing made by the Appellant against the Council, we conclude that he considers he already has sufficient information to properly advance such allegations.

As certain parts of the document entitled “Claimant’s reasonable suspicions of wrongdoing” show, and as more broadly demonstrated by the Appellant’s approach to the issues in the hearing bundle, including not least in seeking the Additional Outcomes in this ground of appeal, we have concluded that the pursuit of the Requests was the Appellant’s chosen method to ventilate his concerns about the legality of the underlying actions by the Council or developer(s), when the Council has set out its position clearly and in respect of which he says he was not intending to bring a judicial review to challenge that legality.

This point is reinforced by the fourth ground of appeal which emphasises that he considers the Council’s conduct to be central to his belief in the public interest and to support rather than undermine his rationale for the requests. We accept that this is a key aspect of the Appellant’s rationale for the requests, but for the reasons given in this decision, we do not accept the Appellant’s arguments in respect of the public interest underlying the Requests.

Moreover we would reject the fourth ground of appeal for two reasons. First, because it does not concern the Decision Notice itself which is the document with which the specific focus of the Tribunal’s jurisdiction of s.58 FOIA is concerned. The covering email does not form part of the Decision Notice itself. Second and in any event, that covering email must be seen in the context of the Appellant’s complaint to the Commissioner dated 19 August 2024 in which he made a variety of complaints about the Council’s conduct not specifically linked to the requests which he was complaining about. The Commissioner’s covering email was simply indicating that its ability to adjudicate on such issues did not fall within its remit. There is accordingly no merit in this ground of appeal

More generally and taking a step back from the detail, we consider that pursuit of these requests is a good example of vexatiousness by drift – that is where an original legitimate concern has morphed into something which is pursued in such a way that it not only extinguishes or limits the underlying public interest, but also amounts to a disproportionate use of the relevant information law regime – see by analogy Oxford Phoenix Innovation Limited v Information Commissioner and MHPRA [2018] UKUT 192 (AAC) in the context of s.14 FOIA. Request 356 and the Appellant’s approach to that is a good illustration of the point and that also in our view extends to the related Requests which are the subject of this appeal. This issue is also supported by the approach of the Appellant generally in the documents contained in the bundle.

We also agree that the Appellant’s approach is likely to cause meaningful distress and concern to the Council’s staff, not least through the forceful manner and repeated allegations of wrongdoing against a variety of individuals at the Council. As set out in the Application this now includes allegations of criminal behaviour. In his complaint to the Commissioner, the Appellant included allegations that a solicitor had acted in breach of her professional obligations. We also repeat what we have said at paragraph 45 above about allegations of improper motivation which applies equally to this issue. While the issue of whether a request is manifestly excessive must be judged as at the time of the Council’s response to the Requests, we consider that this is consistent with the circumstances which existed at that time.

Judged objectively and holistically therefore, and taking account of all the factors in the case, including in particular the importance of access to environmental information by local individuals and campaigners, we consider that each of the Requests was manifestly excessive.

Having decided that, we next considered whether the public interest in maintaining the exception outweighed the public interest in disclosing the requested information. We have concluded that it does for the reasons set out above. In short, we consider that the public interest in the proportionate and focused use of the EIRs without placing an undue burden on the limited resources significantly outweighs the public interest in disclosure of the information requested for each of the requests. Finally, and for the same reasons, we have considered that this is a proper and justified occasion where the presumption in favour of disclosure does not mean that the requested information should be disclosed. The Commissioner’s Decision Notice therefore was in accordance with the law when it concluded that r.12(4)(b) of the EIRs was engaged.

Finally, we turn to two remaining aspects of the ground of appeal:

For these reasons, we are satisfied that the Decision Notice was in accordance with the law and dismiss the appeal.