Storm Nuttall v The Information Commissioner
[2024] UKFTT 393 (GRC)
Donna Clarke v Information Commissioner
20 June 2024
[2024] UKFTT 520 (GRC)
First-tier Tribunal
Someone requested information from a council about a planning decision. The council refused, claiming it was private. A judge disagreed, saying the council had to release the information because its reasons for keeping it secret weren't good enough. The case explains when councils can keep information secret under environmental information laws.
Key Facts
- •Donna Clarke appealed the Information Commissioner's decision upholding Torridge District Council's refusal to disclose information relating to an Article 4 Direction concerning Braddon Woods.
- •The request sought various documents and correspondence related to the Article 4 Direction, including internal reports and communications with the Department for Levelling Up, Housing and Communities (DLUHC).
- •The Council withheld information citing Regulations 12(3), 12(4)(e), and 12(5)(b) of the Environmental Information Regulations 2004 (EIR).
- •The Appellant argued the Council failed to disclose correspondence with DLUHC and that there were no valid grounds for withholding the information.
- •The Tribunal considered whether further information was held, and whether the Council's reliance on the cited regulations was justified.
Legal Principles
Environmental Information Regulations 2004 (EIR): Public authorities must disclose environmental information on request, subject to exceptions.
Environmental Information Regulations 2004
Regulation 12(4)(e) (internal communications): A class-based exception, automatically engaged for internal communications but subject to the public interest balancing test.
EIR Regulation 12(4)(e)
Regulation 12(5)(b) (course of justice): Disclosure may be refused if it would adversely affect the course of justice, subject to the public interest test. The test requires a more than 50% chance of adverse effect.
EIR Regulation 12(5)(b)
Legal Professional Privilege (LPP): Protects confidential communications between lawyer and client for the dominant purpose of seeking or giving legal advice. Not a specific EIR exception, but refusal under 12(1)(b) possible if disclosure would adversely affect the course of justice.
Three Rivers District Council v Governor and Company of the Bank of England (no 6) [2004] UKHL 48; Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35
Regulation 12(3) (personal data): Personal data not to be disclosed unless in accordance with regulation 13, considering data protection principles (Article 5(1) UK GDPR, section 34(1) DPA). Balancing test under Article 6(1)(f) UK GDPR applies.
EIR Regulation 12(3), Data Protection Act 2018, UK GDPR
Outcomes
Appeal Allowed
The Tribunal found that Torridge District Council held further information within the scope of the request (correspondence with DLUHC) and was not entitled to withhold the information under Regulations 12(3), 12(4)(e), or 12(5)(b). The withheld information did not meet the criteria for these exceptions.
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