Andrew Tyerman v Information Commissioner & Anor
[2024] UKFTT 382 (GRC)
Stephen Lavelle v The Information Commissioner & Ors
26 April 2024
[2024] UKFTT 343 (GRC)
First-tier Tribunal
Someone asked a water company for information about sewage discharges. The company refused, saying it would hurt an ongoing investigation. A judge disagreed, saying the water company didn't properly consider the public's right to know and ordered the information to be released.
Key Facts
- •Stephen Lavelle, Vice Chair of the Whitburn Neighbourhood Forum, requested environmental information from Northumbrian Water Limited (NWL) regarding discharges from its Whitburn Steel Pumping Station.
- •NWL refused the request, relying on exceptions under regulation 12(5)(b) and 12(4)(a) of the Environmental Information Regulations 2004 (EIR).
- •The Information Commissioner (IC) upheld NWL's refusal, finding the public interest favored maintaining the exception due to an ongoing Environment Agency (EA) and Ofwat investigation.
- •Lavelle appealed to the First-tier Tribunal (FTT).
Legal Principles
Public authorities must make environmental information available on request, subject to exceptions.
Environmental Information Regulations 2004 (EIR), reg 5(1)
A public authority may refuse to disclose environmental information if disclosure would adversely affect the course of justice or an inquiry (reg 12(5)(b) EIR).
EIR, reg 12(5)(b)
A public authority may refuse to disclose information it does not hold (reg 12(4)(a) EIR).
EIR, reg 12(4)(a)
A public interest balance test (PIBT) applies to exceptions under EIR; the public interest in maintaining the exception must outweigh the public interest in disclosure.
EIR, reg 12(1)(b)
The PIBT should consider all circumstances of the case, not just general policy, and should be applied at the time the public authority makes its decision.
Various case law including Hogan and Montague
There is a presumption in favor of disclosure under EIR.
EIR, reg 12(2)
Outcomes
The appeal was allowed.
The FTT found that NWL had not correctly relied on the exceptions under reg 12(5)(b) and 12(4)(a) EIR. The Tribunal determined that the public interest favored disclosure, and NWL's application of the PIBT was inadequate.
NWL was ordered to provide the requested information within 35 days.
The FTT substituted a decision notice requiring disclosure of the requested information because NWL failed to demonstrate that the exceptions applied and that the public interest favoured withholding the information.