David Bennet v The Information Commissioner & Anor
[2023] UKFTT 1031 (GRC)
David Callister v Information Commissioner & Anor
30 January 2024
[2024] UKFTT 94 (GRC)
First-tier Tribunal
Someone asked a council for information about a wetland project affecting their land. The council said it had no such information. An appeal failed because the court found the council's search for the information was good enough, even though it could have been broader. The council didn't have to give up the information because they didn't have it.
Key Facts
- •David Callister appealed a decision by the Information Commissioner that Westmorland and Furness Council did not hold information requested under the Environmental Information Regulations 2004 (EIR).
- •The request concerned information about discussions relating to a drainage and wetland scheme affecting Callister's land.
- •The Council's initial response, and subsequent internal review, claimed no relevant information was held.
- •Callister argued the Council's search was inadequate, using only the term "Swarthmoor" and searching only two email inboxes.
- •The Tribunal initially requested further information from the Council before reaching a decision.
Legal Principles
Public authorities must make environmental information available on request (Regulation 5(1) EIR).
Environmental Information Regulations 2004
A public authority may refuse disclosure if it does not hold the information (Regulation 12(4)(a) EIR).
Environmental Information Regulations 2004
The standard of proof for determining whether information is held is the balance of probabilities.
Case law and Tribunal interpretation
The Tribunal considers factors such as the quality of the initial analysis, scope and rigour of the search, and the discovery of other materials when assessing whether a public authority is likely to hold further information.
Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072)
Outcomes
The appeal was dismissed.
The Tribunal found, on the balance of probabilities, that the Council did not hold the requested information. The Council's search, while perhaps narrow in its interpretation of the request, was deemed adequate given the evidence presented.