Thomas Foster v The Information Commissioner
[2024] UKFTT 41 (GRC)
Mark Jopling Obo Udney Park Playing Fields Trust Limited v The Information Commissioner & Anor
28 February 2024
[2024] UKFTT 163 (GRC)
First-tier Tribunal
Someone wanted information about a planning application for playing fields. The council refused, claiming it was confidential. A judge said the council had to release the information because they didn't show why keeping it secret was important. The council must share it (except for private details).
Key Facts
- •Appeal under section 57 of the Freedom of Information Act 2000 against the Information Commissioner's Decision Notice.
- •Request for information relating to pre-application advice for a development proposal on playing fields.
- •Information Commissioner initially upheld the Council's reliance on regulation 12(5)(f) of the Environmental Information Regulations (EIR).
- •Tribunal initially found the Commissioner erred in upholding the Council's reliance on regulation 12(5)(f).
- •Tribunal subsequently considered regulations 12(5)(d) and (e) of the EIR.
- •The disputed information included pre-planning application, advice provided by the Council, and associated correspondence.
- •The Tribunal considered whether the pre-application advice constituted 'proceedings' under regulation 12(5)(d) and whether confidentiality would be adversely affected under regulation 12(5)(e).
Legal Principles
Tribunal's remit is to consider if the Commissioner's Decision Notice is in accordance with the law, or if discretion was wrongly exercised.
Freedom of Information Act 2000, section 58
For regulation 12(5)(d) to apply, the information must relate to 'proceedings' implying some formality, not every action or meeting.
Environmental Information Regulations 2004, regulation 12(5)(d); ICO Guidance; Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021)
For regulation 12(5)(e) to apply, four tests must be met: information is commercial/industrial, confidentiality is provided by law, confidentiality protects a legitimate economic interest, and confidentiality would be adversely affected by disclosure.
Environmental Information Regulations 2004, regulation 12(5)(e); ICO Guidance
'Adversely affect' requires an identifiable harm or negative impact; a more than 50% chance of adverse effect must be established.
Environmental Information Regulations 2004, regulation 12(5)
Regulation 12(9) prevents refusal to disclose information on emissions under exceptions in paragraphs (5)(d)-(g).
Environmental Information Regulations 2004, regulation 12(9)
Outcomes
Appeal allowed.
The Tribunal found that the Council could not rely on regulations 12(5)(d) or 12(5)(e) to justify withholding the information. The pre-application advice did not constitute 'proceedings' and the Council failed to demonstrate that disclosure would adversely affect confidentiality of a legitimate economic interest.
Second Respondent (Council) ordered to disclose requested information (subject to redaction of personal information).
The Tribunal concluded that neither exception in regulation 12(5)(d) or (e) applied. The Council's arguments regarding potential harm to the applicant's competitive position lacked sufficient evidence and specificity.