Kate Sharp v The Information Commissioner
[2024] UKFTT 290 (GRC)
Storm Nuttall v The Information Commissioner
15 May 2024
[2024] UKFTT 393 (GRC)
First-tier Tribunal
Someone asked a council for emails about a planning decision. The council refused, saying internal discussions should be private. A judge agreed, saying the public interest in keeping those emails secret (especially since the decision could still be appealed) was more important than the public's right to see them.
Key Facts
- •Storm Nuttall appealed a Decision Notice (DN) issued by the Information Commissioner (Commissioner) concerning a refusal by South Hams District Council (Council) to disclose internal communications related to a planning application.
- •The Council withheld information under Regulation 12(4)(e) of the Environmental Information Regulations 2004 (EIR), claiming the public interest in maintaining the exception outweighed the public interest in disclosure.
- •The appeal focused solely on the public interest balance, not the applicability of Regulation 12(4)(e).
- •The Appellant argued the Commissioner's public interest balancing was inconsistent with previous decisions and that the Council's underperformance wasn't adequately considered.
- •The Commissioner argued that each DN is decided on its merits and that the Council's statements were accepted at face value.
Legal Principles
Definition of environmental information under the EIR
Regulation 2(1) EIR
Duty to make environmental information available under the EIR, subject to exceptions
Regulation 5(1) EIR
Exception for internal communications under the EIR
Regulation 12(4)(e) EIR
Public interest test under Regulation 12(4)(e) EIR: balancing the public interest in maintaining the exception against the public interest in disclosure.
Regulation 12(4)(e) EIR
Timing of the public interest test under EIR: judged at the time of the public authority's decision, not at the time of an internal review.
Montague - UA-2020-000324-GIA
Outcomes
Appeal dismissed.
The Tribunal found that the information constituted internal communications under Regulation 12(4)(e) EIR. The public interest in maintaining the exception (protecting internal deliberation and decision-making, particularly during a live planning appeal) significantly outweighed the public interest in disclosure. The Tribunal accepted the Commissioner's reasoning and found no error in law.
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