John Windas v The Information Commissioner
[2023] UKFTT 341 (GRC)
Catherine Louise Holden v The Information Commissioner
19 September 2023
[2023] UKFTT 764 (GRC)
First-tier Tribunal
Someone asked a council for a report. The council said no, citing environmental laws. A judge said the council should have used different laws, and the report could be kept secret because it was confidential. The council also messed up by not helping the person who made the request, so they have to try again.
Key Facts
- •Catherine Louise Holden (Appellant) appealed the Information Commissioner's (Commissioner) decision that Hartlebury Parish Council (Council) could withhold a report under the Environmental Information Regulations 2004 (EIR).
- •The Appellant requested a car park report costing £3960.
- •The Council initially refused the request based on section 42 of the Freedom of Information Act 2000 (FOIA) (legal professional privilege).
- •The Commissioner ruled the request should be under EIR and that the Council could withhold the report under regulation 12(5)(b) (course of justice).
- •The withheld report was actually a mortar sample analysis report related to patio wall repairs, not the car park.
- •The Tribunal found the Commissioner erred in applying the EIR and that FOIA applied.
Legal Principles
General right of access to information held by public authorities
Freedom of Information Act 2000 (FOIA), Section 1(1)
Exemptions to FOIA, some absolute, others subject to public interest test
FOIA, Section 2(2)
Absolute exemption for information provided in confidence
FOIA, Section 41(1)
Qualified exemption for information subject to legal professional privilege
FOIA, Section 42(1)
Qualified exemption for information that would prejudice commercial interests
FOIA, Section 43(2)
General right of access to environmental information, subject to exceptions
Environmental Information Regulations 2004 (EIR), Regulation 5(1)
Exception for information that would adversely affect the course of justice
EIR, Regulation 12(5)(b)
Public interest test for qualified exemptions under FOIA and EIR
FOIA Section 2(2)(b), EIR Regulation 12(1)(b)
Definition of environmental information should be interpreted purposively and broadly, but not unlimited
Case law: Glawischnig v Bundesminister, Henney case
Duty of public authorities to provide reasonable advice and assistance
FOIA, Section 16
Outcomes
Appeal allowed in part
The Commissioner incorrectly applied the EIR; FOIA should have been applied. Section 41(1) of FOIA (absolute exemption for information provided in confidence) applied to the withheld report.
Substituted Decision Notice issued
The Council is entitled to rely on section 41(1) of FOIA to refuse disclosure of the withheld report. The Council must make a fresh response to the request, clarifying whether other information is held and disclosing it unless exemptions apply.
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