Peter Marshall v Information Commissioner

This is an appeal brought by the appellant under section 57 of the Freedom of Information Act 2000 as applied by regulation 18 of the Environmental Information Regulations 2004 (the EIR) against a decision notice issued by the Information Commissioner dated 28 January 2026.

By that decision notice, the Commissioner concluded that Westminster City Council (the Council) was entitled to refuse the Appellant’s request for information on the basis of regulation 12(4)(b) EIR (manifestly unreasonable request), and required no steps to be taken.

The appellant appeals that conclusion.

The request, made on 5 March 2025, concerned the size and siting of a feeder pillar serving electric vehicle charging units in Lisson Grove, London NW8. In substance, the appellant sought an explanation as to why a cabinet of what he described as “excessive cubic capacity” had been installed in the centre of the pavement. The Council refused the request and, on internal review, relied on regulation 12(4)(b) EIR, citing repetition and a pattern of persistent correspondence.

In the decision notice, the Commissioner first determined that the information requested constituted environmental information within regulation 2(1) EIR, as it related to a physical installation affecting land. He concluded that the request substantially overlapped with earlier requests made by the appellant concerning the same installation, including its location and relocation. Although he accepted that the question of the cabinet’s size introduced a limited element of novelty, the Commissioner found that this aspect had been addressed during the internal review by reference to operational and safety requirements, including the need to provide adequate clearance, ventilation, and compliance with electricity network standards.

Taking account of the history and context of the request, including an extended course of correspondence and multiple related requests, and applying the approach derived from Dransfield v Information Commissioner, the Commissioner concluded that further responses would impose a disproportionate and unjustified burden on the Council.

In that regard, the Commissioner took into account the broader context. He found that the Appellant had engaged in an extended course of correspondence about the EV pillar, including multiple requests and a Stage 2 complaint process.

He also accepted evidence that the request formed part of a wider pattern of frequent requests made by the Appellant over an extended period, including numerous requests across a range of subjects.

The Commissioner concluded that the issue had been “exhaustively explored” through earlier requests and complaint procedures. He considered that further responses were unlikely to resolve the Appellant’s concerns and were more likely to lead to additional correspondence, thereby increasing the burden on the Council.

In assessing the purpose and value of the request, the Commissioner acknowledged the general importance of access to environmental information. However, he concluded that the present request appeared to be driven primarily by the Appellant’s personal concerns rather than by any wider public interest.

Weighing those matters together, the Commissioner found that compliance with the request would impose a disproportionate and unjustified burden on the Council and that the request was therefore manifestly unreasonable within the meaning of regulation 12(4)(b) EIR.

The Commissioner then conducted the public interest test required by regulation 12(2) EIR. He recognised that there is an inherent public interest in transparency and accountability in relation to environmental infrastructure.

However, he found that the public interest in disclosure carried limited additional weight in the circumstances. The Council had already provided explanations addressing both the location and the size of the installation, there was no evidence of wrongdoing, and the residual informational value of further responses was limited.

By contrast, the Commissioner concluded that there was a strong public interest in protecting the Council from the burden of dealing with repeated requests and in allowing it to allocate its resources effectively to its statutory functions.

The Commissioner therefore concluded that the balance of the public interest favoured maintaining the exception, and he upheld the Council’s refusal of the request.

The right of access to environmental information is governed by the EIR as already referred to. The EIR establish a broad and purposive right of access to environmental information held by public authorities.

Regulation 2(1) EIR defines “environmental information” in expansive terms. It includes information on the state of elements such as land and landscape, as well as “measures” affecting or likely to affect those elements.

The Tribunal accepts, as did the Commissioner, that the information requested in this case falls within regulation 2(1)(c), as it concerns an item of infrastructure and its characteristics, being a measure affecting land.

Regulation 5(1) EIR provides, subject to the provisions of the Regulations, that a public authority must make environmental information available on request. That obligation is subject to several exceptions set out in regulation 12.

Regulation 12(4)(b) EIR provides that a public authority may refuse to disclose information to the extent that the request is “manifestly unreasonable”.

The term “manifestly unreasonable” is not defined in the EIR. However, it is well established that it encompasses requests which are vexatious in character or which impose a disproportionate burden on a public authority. The application of the provision is informed by principles derived from case law under section 14(1) of the Freedom of Information Act 2000.

In particular, the Tribunal adopts the approach set out by the Upper Tribunal in Information Commissioner v Devon County Council & Dransfield [2012] UKUT 440 (AAC), which has been consistently applied in the context of regulation 12(4)(b) EIR. That approach requires a broad evaluative judgment, taking into account all the circumstances of the case.

The relevant considerations may include, but are not limited to:
the burden imposed by the request on the public authority;
the history and context of the request, including any pattern of repeated or persistent requests; the motive of the requester, so far as objectively discernible; and
the value or purpose of the request.

These factors are not to be treated as a checklist, but as part of an overall assessment of whether the request represents a disproportionate, unjustified, or improper use of the right of access.

The Tribunal also notes that the threshold for engaging regulation 12(4)(b) EIR is a high one, reflecting the importance of the right of access to environmental information.

Even where regulation 12(4)(b) EIR is engaged, regulation 12(1)(b) and 12(2) require the authority to carry out a public interest test. Regulation 12(2) EIR provides that a public authority “shall apply a presumption in favour of disclosure”.

The effect of that provision, as explained in Vesco v Information Commissioner [2019] UKUT 247 (AAC), is twofold. First, the presumption operates as a tie-breaker where competing public interests are evenly balanced. Secondly, it informs the weighting exercise throughout the balancing process.

The appellant’s grounds of appeal are set out in his notice of appeal, which is dated 28 January 2026. In essence, the appellant contends that the Commissioner erred in concluding that the Council was entitled to rely upon regulation 12(4)(b) EIR. He submits that the application of that provision was itself “manifestly unreasonable”, and that both the Council and the Commissioner failed to take proper account of the factual circumstances surrounding the installation of the feeder pillar.

The appellant’s grounds focus in particular on the circumstances in which the installation was relocated and subsequently enlarged. He asserts that the Council failed adequately to consult relevant parties at the time of installation, including the operator of the adjacent substation, and that the cabinet was relocated into the centre of the pavement as a consequence of those failures. He further contends that the size of the cabinet was unnecessarily increased, thereby creating a physical obstruction and raising concerns as to safety and amenity.

The appellant submits that these matters give rise to a legitimate public interest in disclosure, and that the request cannot properly be characterised as vexatious or unreasonable. He disputes the Commissioner’s conclusion that the request is driven by private concerns, and maintains that the issues raised have wider public significance, including implications for public safety, infrastructure planning, and the use of public space.

The appellant also takes issue with the Commissioner’s characterisation of the request as repetitive. He contends that the present request differs from earlier requests in that it specifically seeks an explanation for the increased cubic capacity of the cabinet, which he says has not been properly addressed. He maintains that the Council has failed to provide a substantive answer to that question and that its reliance on regulation 12(4)(b) EIR serves to avoid proper scrutiny.

More broadly, the appellant argues that the Commissioner erred in placing undue weight on the history of correspondence and insufficient weight on the importance of transparency in relation to the Council’s decision-making. He contends that the Commissioner’s reasoning fails properly to apply the presumption in favour of disclosure required by regulation 12(2) EIR.

The Commissioner’s response to the appeal is dated 26 February 2026. In that response, the Commissioner opposes the appeal and relies upon the reasoning set out in the decision notice.

The Commissioner emphasises that the central issue in the appeal is not the merits of the Council’s underlying decision to install or relocate the feeder pillar, but rather the lawfulness of its response to the request for information. He submits that the appellant’s grounds, in large part, seek to revisit the substantive merits of the installation and associated decision-making, which fall outside the scope of the Tribunal’s jurisdiction in this appeal.

In relation to the alleged novelty of the request, the Commissioner submits that the Tribunal should consider the substance rather than its form. He maintains that the request is properly characterised as a continuation of earlier requests concerning the same installation, particularly in relation to its siting. He acknowledges that the appellant framed part of the request in terms of the size of the cabinet, but submits that this aspect was addressed by the Council during the internal review and does not materially alter the overall character of the request.

The Commissioner further submits that the history of correspondence is of central relevance to the application of regulation 12(4)(b) EIR. He relies on evidence that the Appellant has made multiple requests concerning the same subject matter and a substantial number of requests more generally. He contends that this pattern, taken together with the extent to which the issues have already been addressed, supports the conclusion that further responses would impose a disproportionate burden on the Council and would be unlikely to resolve the appellant’s concerns.

As to the public interest, the Commissioner accepts that there is a general public interest in transparency in relation to environmental infrastructure. However, he submits that the Council has already provided explanations addressing the key issues raised, and that there is no evidence of wrongdoing or lack of accountability which would increase the public interest in further disclosure. He argues that the incremental value of any further information is limited and is outweighed by the public interest in protecting the Council from disproportionate use of its resources.

The Commissioner accordingly submits that the decision notice is correct in law and that the appeal should be dismissed.

The issues for the Tribunal are:
(i) whether the request was manifestly unreasonable within the meaning of regulation 12(4)(b) EIR; and
(ii) if so, whether the public interest nonetheless favours disclosure.

The Tribunal has considered all the evidence in the bundle. It is clear that the appellant has, since early 2023, pursued concerns regarding the installation in question. An earlier request made in February 2023 sought, among other things, reasons for the relocation of the installation and associated material, and was answered by the Council. The appellant subsequently continued to pursue the matter through further requests and through the complaints process, culminating in a Stage 2 response in August 2023 addressing his concerns about the installation’s location and effects.

Against that background, the present request must be assessed in context. Although framed in terms of the cabinet’s “cubic capacity”, the Tribunal finds that it is in substance a continuation of the same line of inquiry concerning the characteristics and siting of the installation. The Tribunal accepts that the Council, during the internal review, provided an explanation addressing the size of the cabinet based on technical and safety considerations, including operational requirements and compliance with relevant standards. There is no evidence that the Council held additional recorded information specifically addressing whether a smaller cabinet could have been used.

The Tribunal also finds that the appellant has made a significant number of information requests to the Council over the relevant period, including approximately 28 requests between October 2023 and April 2025, with a concentration of requests in early 2025. This pattern is relevant not because it disqualifies the appellant from exercising his rights, but because it forms part of the factual matrix in assessing the burden on the authority and the overall character of the request.

Drawing these matters together, the Tribunal agrees with the Commissioner that the request falls to be characterised as part of an ongoing and repetitive course of correspondence concerning a matter which has already been substantively addressed. The Council has provided information explaining both the location and the size of the installation, and has engaged with the appellant’s concerns through both the information rights regime and its complaints procedures.

In those circumstances, the Tribunal considers that the Commissioner was entitled to conclude that requiring the Council to provide further responses would impose a disproportionate burden. The relevant burden is not limited to the act of providing a single response, but includes the likely continuation of correspondence and the diversion of resources, including technical staff time, in circumstances where the underlying issues have already been explored in detail. The Tribunal considers that this is a case in which the cumulative effect of repeated and overlapping requests gives rise to a disproportionate and unjustified burden.

The Tribunal also agrees with the respondent’s assessment of the purpose and value of the request. While the appellant’s concerns are genuinely held, the evidence supports the conclusion that the marginal informational value of any further response is limited. The Council has already explained the relevant technical considerations, and there is no indication that further recorded information exists which would materially advance the appellant’s understanding. However, the Tribunal does accept, unlike the Commissioner, that the present request is ‘driven’ from the appellant’s point of view not by his personal concerns but by his genuinely held concerns in the wider public interest.

Turning to the public interest, the Tribunal recognises the importance of transparency in relation to environmental measures and infrastructure. There is a general public interest in ensuring that decisions affecting the public realm are open to scrutiny. There is also a public interest in ensuring that decisions properly take into account issues of health and safety. However, those interests must be assessed in the light of the information already provided. Where, as here, the authority has already explained the key features of the installation and there is no evidence of wrongdoing or opacity, the additional public interest in further disclosure is necessarily reduced.

Against that must be weighed the strong public interest in protecting public authorities from disproportionate burdens and in enabling them to allocate their resources effectively in discharging their wider functions. The EIR regime is designed to promote transparency, but it is not intended to require authorities to engage indefinitely with repeated requests of diminishing informational value.

The Tribunal is satisfied that the Commissioner correctly applied the presumption in favour of disclosure as part of the balancing exercise and was entitled to conclude that it did not outweigh the factors favouring maintenance of the exception in this case.

For those reasons, the Tribunal concludes that the request was manifestly unreasonable within the meaning of regulation 12(4)(b) EIR and that the public interest in maintaining the exception outweighs the public interest in disclosure.

The appeal is accordingly dismissed.