David Callister v Information Commissioner & Anor
[2024] UKFTT 94 (GRC)
David Bennet v The Information Commissioner & Anor
21 December 2023
[2023] UKFTT 1031 (GRC)
First-tier Tribunal
Someone asked a council for information. The council said they didn't have it (or couldn't release it due to privacy). A judge agreed about most of the information, but said the council was wrong about one part because they focused on the wrong thing. The judge corrected the council's mistake and the person got the information they initially requested.
Key Facts
- •Mr. Bennett appealed a Decision Notice from the Information Commissioner concerning a request for information from Sandwell Metropolitan Borough Council under the Environmental Information Regulations 2004 (EIR).
- •The request involved five questions related to building control matters.
- •The Council initially withheld information citing personal data protection under reg 13 EIR and lack of information under reg 12(4)(a) EIR.
- •The Commissioner upheld the Council's position on questions 2-5 (information not held), but found the Council's reliance on reg 13 EIR for question 1 to be inappropriate.
- •Mr. Bennett argued that the Council had misled him and withheld information that was publicly available.
Legal Principles
Public authorities must make environmental information available on request (subject to exceptions).
Reg 5 EIR
Personal data cannot be disclosed under EIR if disclosure would contravene data protection principles.
Reg 13 EIR
Public authorities can refuse disclosure of information if they do not hold it (subject to the public interest test).
Reg 12(4)(a) EIR
The Information Commissioner must decide whether information is held on the balance of probabilities.
Bromley and others -v- Information Commissioner and the Environment Agency EA/2006/0072
Tribunal's role is to determine if the Decision Notice is lawful or if the Commissioner exercised discretion improperly.
Section 58 FOIA
A public authority's change of position in response to an EIR request is not inherently suspicious.
Birkett -v- DEFRA [2011] EWCA Civ 1606
The IC is generally entitled to accept the word of the public authority unless there's evidence of inadequate search, reluctance to search properly, or motive to withhold information.
Oates v Information Commissioner and Architects Registration Board EA/2011/0138
Outcomes
Appeal relating to questions 2-5 dismissed.
The Commissioner correctly applied the balance of probabilities test to determine whether the information existed, and it was not in the public interest to disclose information that likely didn't exist.
Appeal relating to question 1 allowed; substituted Decision Notice issued.
The Council incorrectly relied on reg 13 EIR; the focus should have been on the scope of the request. The information requested in question 1 was subsequently provided.