Bryan Rylands v The Information Commissioner

On 24 November 2022, the Appellant contacted the Council and requested information in the following terms:

“Please provide me with any information on the Stock Condition Survey of Social Housing Stock undertaken by Rapley's LLP which began on the 12/05/21 and ended on the 10/12/2021, at a cost of £163,290.”.

The Council responded on 21 December 2022. It provided some of the Requested Information but withheld other information, citing regulation 12(5)(e) (confidentiality of commercial or industrial information) and regulation 12(3) (personal information).

On 22 December 2022, the Appellant requested an internal review in respect of the handling of the Request.

The Council provided the outcome of its internal review on 29 February 2024. It considered that some of the terminology which it had used in its response to the Request had been incorrect, but it nevertheless upheld its previous position.

The Appellant contacted the Commissioner on 1 March 2024 to complain about the Appellant’s response to the Request. The Commissioner subsequently issued the Decision Notice.

The Decision Notice recorded that the Appellant had not challenged the Council’s application of regulation 12(3) in respect of the Request. The Commissioner therefore considered that the scope of his investigation was whether the Council was correct to apply regulation 12(5)(e) to withhold some of the Requested Information.

In the Decision Notice, the Commissioner decided that:

The Commissioner therefore decided that the Council was correct to apply regulation 12(5)(e) to withhold some of the Requested Information.

The Commissioner also determined that the Council breached regulation 11(4), as it failed to provide the outcome of its internal review (requested by the Appellant on 22 December 2022 (Footnote: ¹)) until 29 February 2024.

The Decision Notice did not require the Council to take any steps.

Regulation 18 provides that the enforcement and appeals provisions of FOIA (namely Part IV, including Schedule 3, of FOIA and Part V of FOIA) apply for the purposes of the EIRs, subject to certain modifications.

For the reasons we have given in paragraph 39, this was therefore an appeal against the Decision Notice pursuant to the EIRs, in accordance with section 57 as applied by regulation 18.

The Appellant’s grounds of appeal were (in essence) based on his views that:

The powers of the Tribunal in determining the appeal are set out in section 58 (which applies pursuant to regulation 18), as follows:

“(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.”

In summary, therefore, the Tribunal’s remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

The appeal was listed to be heard by the cloud video platform. However, the Appellant notified the Tribunal via email dated 13 February 2025 that he wished to withdraw the appeal, for health reasons. The Commissioner did not provide any submissions with regard to the potential withdrawal of the appeal, but he had already elected not to attend the hearing.

We decided (having regard to the overriding objective in rule 2 of the Rules) that it would not be fair for the Appellant to be deprived of his opportunity to appeal the Decision Notice simply because of his ill health.

We considered that the appeal was suitable for determination on the papers in accordance with rule 32 of the Rules. We were satisfied that it was fair and just to conduct the appeal in this way, given that the Appellant would not otherwise have his appeal heard (and given that the Commissioner had already elected not to attend the hearing in any event).

The Tribunal read and took account of an open bundle of evidence and pleadings, as well as a closed bundle. The closed bundle contained the Withheld Information (namely, the Stock Condition Survey without any redactions).

All of the contents of the bundles were taken into account, even if not directly referred to in this decision.

The EIRs provide individuals with a general right of access to environmental information held by public authorities, subject to some exceptions. Regulation 5(1) provides:

“…a public authority that holds environmental information shall make it available on request.”.

The term ‘environmental information’ is defined in regulation 2(1) which, so far as is material, states:

“…any information in written, visual, aural, electronic or any other material form on—

(a)

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b)

factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c)

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements…”.

The definition of ‘environmental information’ is to be given a broad meaning in accordance with the purpose of the underlying European Council Directive which the EIRs implement (Direction 2004/4/EC). (Footnote: ³)

Therefore, pursuant to regulation 5(1), a person who has made a request to a public authority for ‘environmental information’ is entitled to have that information made available to them, if it is held by the public authority. However, that entitlement is subject to the other provisions of the EIRs, including some exceptions and qualifications which may apply even if the requested environmental information is held by the public authority. The opening wording of regulation 5(1) (that is, the wording immediately preceding the extract of that regulation quoted above) provides:

“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…”.

Part 3 of the EIRs contains various exceptions to the duty to disclose environmental information which has been requested. It is therefore important to note that the EIRs do not provide an unconditional right of access to any environmental information which a public authority does hold. The right of access to information contained in regulation 5(1) is subject to certain other provisions of the EIRs.

Requests for ‘environmental information’ are normally dealt with under the EIRs rather than FOIA, pursuant to section 39(1) (which contains an exemption to disclosure of environmental information under FOIA).

As noted, Part 3 of the EIRs contains various exceptions to the duty to disclose environmental information which has been requested. Within Part 3 of the EIRs, 12(5)(e) (confidentiality of commercial or industrial information) is applicable for the purposes of this appeal. So far as is relevant, regulation 12 provides:

“(1)

… a public authority may refuse to disclose environmental information requested if—

(a)

an exception to disclosure applies under paragraphs (4) or (5); and

(b)

in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

(5)

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

(e)

the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”.

Succinctly put, therefore, a public authority may refuse to disclose environmental information which is requested under the EIRs if the disclosure of that information would adversely affect the applicable confidentiality of commercial or industrial information and if, in all the circumstances, the Public Interest Test favours withholding the information.

Pursuant to regulation 12(2), a public authority must apply a presumption in favour of disclosure of environmental information.

Case law has established that this presumption serves two purposes:

So far as is relevant for current purposes, regulation 11 provides:

“(1)

Subject to paragraph (2), an applicant may make representations to a public authority in relation to the applicant’s request for environmental information if it appears to the applicant that the authority has failed to comply with a requirement of these Regulations in relation to the request.

(2)

Representations under paragraph (1) shall be made in writing to the public authority no later than 40 working days after the date on which the applicant believes that the public authority has failed to comply with the requirement.

(3)

The public authority shall on receipt of the representations and free of charge—

(a)

consider them and any supporting evidence produced by the applicant; and

(b)

decide if it has complied with the requirement.

(4)

A public authority shall notify the applicant of its decision under paragraph (3) as soon as possible and no later than 40 working days after the date of receipt of the representations.”.

As mentioned earlier, the Appellant did not challenge, in his complaint to the Commissioner, the Council’s application of regulation 12(3) in respect of the Request. This was also not raised in his grounds of appeal.

Therefore the relevant issue which we needed to determine was whether the Commissioner was correct in concluding that the Council could rely on regulation 12(5)(e) to refuse to disclose the Withheld Information.

For completeness, we also briefly address the issue of the application of the EIRs to the Request, notwithstanding that there was no dispute between the parties on this point.

We find that the EIRs do apply to the Request. The Requested Information fundamentally relates to measures affecting land (essentially, proposed maintenance and remediation plans relating to the Council’s social housing stock) and associated matters. It is clear that such measures relate to information ‘on’ the environment for the purposes of the definition of ‘environmental information’ in regulation 2(1).

For convenience, we use the term “information” below to refer (where the context permits) to environmental information within the scope of the EIRs.

The information within the scope of the Request which was withheld by the Council comprises (in essence) various financial figures within the Stock Condition Survey, as well as some information on the expected life cycle of certain items. As explained by the Commissioner in the Decision Notice, the report provided an independent opinion of the re-investment required for the Council’s stock of social housing for the next 30 years.

The Stock Condition Survey was disclosed by the Council, other than the information referred to in paragraph 41 (which was redacted).

In his response to the appeal, the Commissioner generally relied on the Decision Notice as setting out his findings and the reasons for those findings.

Regarding the Appellant’s arguments that the tendering process was still live at the time of the Request, the Commissioner’s view was that the Appellant appeared to have misunderstood the position regarding the tendering process. The Commissioner submitted that the Appellant appeared to have thought that the tendering process related to a further contract with Rapleys LLP, but that the tendering process referred to in the Decision Notice was for the proposed work to the Council’s social housing stock outlined in the Stock Condition Survey.

We agree that the relevant tendering process is that relating to the proposed work to the Council’s social housing stock. The Stock Condition Survey addresses the work, which covers details descriptions of the different aspects of the work required, together with (in respect of the Withheld Information) itemised costings in respect of each such aspect. The Withheld Information therefore identifies costings for work which is required to be undertaken over a 30 year period and it is that work which the Council would be issuing tenders in respect of (see also paragraph 53).

We therefore do not accept the Appellant’s arguments that the Commissioner incorrectly concluded that the tendering process was live at the time of the Request.

In respect of the nature of the Withheld Information, we agree with the Commissioner’s findings in the Decision Notice that the Withheld Information is commercial in nature and is subject to a duty of confidence.

We find that the Withheld Information is commercial in nature for essentially the same reasons as given by the Commissioner in the Decision Notice - namely, in summary, that it relates to the work and investment required in respect of the Council’s stock of social housing over the next 30 years and it therefore relates to the Council’s long term business plans and budgets.

We also find that the Withheld Information is subject to a duty of confidence for largely the same reasons given by the Commissioner. The Decision Notice recorded the Council’s explanation that the Stock Condition Survey was provided in confidence by a third party (Rapleys LLP) for use only by the Council and the Commissioner’s view was that it enabled the Council to shape its 30 year Housing Revenue Business plan and therefore was not trivial and that it was not in the public domain.

That view of the confidentiality of the Stock Condition Survey was supported by our assessment of it. In particular, the Stock Condition Survey included a statement to the effect that it was for the private and confidential use of the Council, and another statement (under the heading of ‘Disclosure’) that the report was specifically for the Council as the named addressee. We also find that the general nature and context of the Stock Condition Survey supports the view that it was confidential in nature. There was no evidence before us that the Withheld Information had been publicly disclosed or was otherwise no longer subject to confidentiality.

We acknowledge that some of the Stock Condition Survey was disclosed by the Council (as referred to in paragraph 42). The Appellant argued that this meant that the Stock Condition Survey could not be considered confidential. However, that argument is misconceived; it does not follow that all information in any given document ceases to be confidential just because aspects of it are not, or because they have been disclosed anyway. In this case, the Council had, as set out in its response to the Request, assessed what aspects of the Stock Condition Survey could be disclosed on the basis that they are not confidential or sensitive in nature. Indeed, we consider that, in making such disclosure, the Council has sought to provide transparency (a factor which is relevant to our assessment of the Public Interest Test, which we address below).

The Appellant also contended that the Stock Condition Survey could not be confidential as it was subject to disclosure under the EIRs. However, as we noted in paragraph 29, the EIRs (as with FOIA) do not provide an unconditional right to any information which is held by a public authority. When considering the possibility of an exception under regulation 12(5)(e), various factors have to be assessed (as referred to in the Decision Notice) with regard to whether any such exception is engaged. Where an exception is engaged and the Public Interest Test favours maintaining that exception, then the public authority may refuse to disclose the relevant information. Accordingly, we cannot accept the Appellant’s argument on this point.

We also agree with the Commissioner’s findings in the Decision Notice that confidentiality was required to protect a legitimate economic interest (the tendering process). As we have noted, the Withheld Information addressed work required in respect of the Council’s housing stock over a 30 year period. Consequently the Council would need tenders in respect of the work over that period (it is unrealistic to expect a single tender to be issued covering a 30 year period; not least as potential bidders would not be able to price work so far ahead). The need for the work (and the associated tendering processes) is evidently a legitimate economic interest.

We consider that the confidentiality of the Withheld Information would be adversely affected by disclosure of it – again, for essentially the same reasons as outlined by the Commissioner in the Decision Notice. The Withheld Information relates to forecasts and estimates (including potential costs/budgets) relating to the separate types of work required for the Council’s social housing stock. We find that disclosure of the Withheld Information would adversely affect the Council’s interests in any subsequent tendering exercise, as those bidding would know what the Council were expecting to pay and would be likely to price their bids accordingly. Essentially, this would mean that bidders could negotiate better terms for themselves, therefore translating into a worse commercial outcome for the Council (and consequently the public purse).

The Appellant argued that there would be no prejudice to the Council’s commercial interests, on the basis that (essentially) the estimates included in the Withheld Information would be affected by inflation and consequently would be out of date. The Appellant referred to the high rates of inflation which could not have been predicted by the Council. However, we consider that that argument is misconceived. This is because it would be possible to take the figures in the Withheld Information and adjust them for subsequent changes in inflation in order to ascertain what the current figures would equate to (i.e. after taking that inflation into account). Accordingly, we do not accept that the figures within the Withheld Information could be said to be out of date such that they would not be of benefit to future bidders for the purposes of the prejudice to the Council which we have referred to.

We therefore find that regulation 12(5)(e) is engaged in respect of the Withheld Information. Accordingly, we now turn to address the Public Interest Test.

The Commissioner stated in paragraph 33 of the Decision Notice that “when considering the application of exceptions the Commissioner must consider the circumstances at the time of the request rather than at the time the case was submitted to him for consideration”. He went on to state, in paragraph 34 of the Decision Notice, that “this means that any arguments for, or against, disclosure should be balanced against the protection of the legitimate interests of the parties involved at the time the request was made…”. We understood the Commissioner to be stating that the Public Interest Test must be assessed at the time of the Request, despite the Commissioner referring to the “application of exceptions” and the “protection of the legitimate interests of the parties involved”. The correct position is that the Public Interest Test must be assessed as at the time of the Council’s refusal of the Request (not the time of the Request itself), which was also alluded to by the Commissioner in his response to the appeal (Footnote: ⁴). However, whilst the Decision Notice was not accurate on this point, this is not material to our findings, for the reasons we will come to.

The Appellant put forward various arguments (including in his dealings with the Council) in support of his view that the public interest favoured disclosure of the Withheld Information. In summary, his material points were:

As recorded in the Decision Notice, the Council acknowledged that there is an inherent presumption in favour of openness and disclosure of information under the EIR and that disclosure of the Withheld Information would give the public a greater understanding of decisions made, or matters being considered, by the Council.

However, the Decision Notice also recorded the Council’s argument that making available commercially sensitive financial data could harm or damage the Council by providing prospective tenderers an advantage, and potentially disadvantaging the Council from a competitive tendering exercise which would not be in the public interest. In summary, the Council’s position was that it was not in the public interest to release the Withheld Information because, at the time of the Request, the linked business plans and models had not been formally agreed.

The Commissioner’s view, regarding factors in favour of disclosure of the Withheld Information, was that that there is a legitimate public interest in the transparency of the Council’s processes and that there is a strong public interest argument in favour of the Council being clear about its intentions for future investment in its social housing stock and how much this is likely to cost the public.

Regarding factors in favour of maintaining the exception in regulation 12(5)(e), the Commissioner’s view was that there is a weighty argument to preserving the principle of confidentiality and that there is an underlying public interest in ensuring the confidentiality of the Council’s processes. The Commissioner’s position was (in essence) that, as the competitive tendering exercise for the proposed work had not been completed at the time of the Request, and that the business plans or models linked to the proposed investment in social housing had not been formally agreed, the public interest in maintaining the exception outweighed that in favour of disclosure.

We have taken into account the various arguments of the parties in respect of the Public Interest Test. We accept that that there is public interest in disclosure of the Withheld Information for the same reasons as cited by the Council and the Commissioner. We do not agree with some of the Appellant’s arguments favouring disclosure, however. In particular:

Overall, considering all the circumstances of the case, we consider that there are weightier arguments in favour of maintaining the exception in regulation 12(5)(e). Fundamentally, this is because the tendering exercise for the relevant works is an ongoing one covering a 30 year period and disclosure of the Council’s estimates for the work would cause the prejudice we have outlined in paragraph 54.

As we have noted, the Decision Notice referred to the date of the Request (rather than the date of the Council’s response to the Request) as being relevant for the purposes of the Public Interest Test. However, we consider that that is not material to our findings because our comments in the preceding paragraph are applicable as at the date of the Council’s response to the Request.

In summary, we acknowledge that there are public interest factors favouring disclosure of the Withheld Information. However, some of those factors have been satisfied by information which is already in the public domain. In contrast, the disclosure of the Withheld Information would cause the prejudice we have referred to in respect of the engagement of regulation 12(5)(e). In our view, considering all the circumstances of the case, the prejudice which would be caused by disclosure of the Withheld Information outweighs the public interest in disclosure of it.

For the above reasons, we find that regulation 12(5)(e) is engaged in respect of the Withheld Information and that the public interest favours maintaining the exception.

As we have noted:

Given the delay in providing the outcome of its internal review and the requirements of regulation 11(4), we agree with that conclusion of the Commissioner.

For all of the reasons we have given, we find that the Decision Notice was correct in concluding that the Council could rely on regulation 12(5)(e) to withhold the Withheld Information.

We therefore dismiss the appeal.