Tribunal Sets High Standard for Handling Information Requests Under Environmental Information Regulations

Citation: [2024] UKFTT 132 (GRC)
Judgment on

Introduction

The First-tier Tribunal (General Regulatory Chamber) delivered a significant decision in the case of Andrew Herman v Information Commissioner ([2024] UKFTT 132 (GRC)). The case dealt with an appeal against the decision of the Information Commissioner concerning a request made under the Environmental Information Regulations 2004 (EIR). The Tribunal, composed of Tribunal Judge Chris Hughes, Tribunal Member Dave Sivers, and Tribunal Member Susan Wolf, allowed the appeal and made clear the principles applicable to a public authority’s handling of information requests.

Key Facts

The case arose from the appellant, Andrew Herman, requesting the Milton Keynes Council (MKC) to publish documentation provided by Mr. Marc Dorfman for Mr. Straker QC’s review. The tribunal took into consideration the factual background of the case detailed in Wardlaw v Information Commissioner and Milton Keynes Council (EA/2020/0138), which earlier set the scene for issues surrounding the Council’s record-keeping and transparency.

Upon refusal of the request initially claiming it was manifestly unreasonable under regulation 12(4)(b) of the EIR, the internal review was sought, leading to further refusal and subsequent escalation to the Information Commissioner. The Commissioner supported the Council’s position without making a formal decision on the exemptions applied. The appellant challenged this, leading to the First-tier Tribunal’s consideration of the case.

Several key legal principles underpin this case, including the proper interpretation and application of the EIR, particularly concerning the terms “manifestly unreasonable” and the application of public interest tests.

  1. Contextual Interpretation: The Tribunal critical of MKC’s decontextualized interpretation of the request, argued that it was necessary to consider the request within the context in which it was made (paragraphs 10-11), bearing in mind the appellant’s previous interaction with the Council.

  2. ”Manifestly Unreasonable” Request: Referring to Dransfield v IC and Devon CC, Craven v IC and DECC [2015] EWCA Civ 454, the Tribunal noted the threshold for deeming a request manifestly unreasonable was high. Factors to be considered included the burden of request, value and purpose, potential harassment and the recipient’s motives (paragraphs 18-20).

  3. Public Interest: The Tribunal emphasized the presumption in favor of disclosure under EIR (Regulation 12(2)) and the necessity for public authorities to show the interest in maintaining the exception outweighs the public interest in disclosure (paragraph 22).

  4. Exceptions to Disclosure: The decision notes the improper treatment of exceptions to disclosure as absolute (paragraph 24). The Tribunal identified flaws in the Council’s approach, arguing that exceptions should be weighed against the public interest.

Outcomes

The appeal was allowed primarily on the basis that the request was not manifestly unreasonable, and the public authority, in this case, MKC, failed to justify an exemption from disclosure. The Tribunal directed MKC to disclose documentation related to Mr. Dorfman’s emails and notes relating to the three named officers within 35 days.

Conclusion

The case of Andrew Herman v Information Commissioner elucidates the importance of an objective and contextual approach when handling information requests under EIR. The Tribunal has clarified that public authorities must undertake a thorough analysis of the request’s burden, value, purpose, and the public interest in favor of disclosure, as opposed to reflexively labeling requests as manifestly unreasonable. It sets a robust standard for public authorities and reaffirms the high threshold for what constitutes a “manifestly unreasonable” request, ensuring that the right to information under environmental law is protected.