Tribunal Decision in Bennett v Information Commissioner Clarifies EIR Regulations.

Citation: [2023] UKFTT 1031 (GRC)
Judgment on

Introduction

The recent First-tier Tribunal case of David Bennett v The Information Commissioner & Anor is a significant decision within the realm of information rights. The Tribunal closely examined several key legal principles concerning the Environmental Information Regulations 2004 (EIR), particularly in relation to requests for information, application of the data protection principles, and the nuances of determining whether requested information is held by a public authority.

Key Facts

David Bennett (“the Appellant”) made a request under the EIR to Sandwell Metropolitan Borough Council (“the Council”) involving a building control matter. His request was met with resistance on grounds of data protection (regulation 13 EIR) and the claim that some requested information was not held by the Council (regulation 12(4)(a) EIR). The Information Commissioner, in its decision, supported the Council’s position. Mr. Bennett appealed to the First-tier Tribunal, challenging the Commissioner’s decision.

The case principally turns on the interpretation and application of certain regulations within EIR, specifically:

  1. Regulation 5 EIR - It establishes the broad duty of public authorities to make available environmental information upon request, subject to specific qualifications and exceptions.

  2. Regulation 12 EIR - Enumerates exceptions to the general duty of disclosure, where regulation 12(4)(a) EIR accounts for the non-disclosure of information not held by the authority at the time of the request.

  3. Regulation 13 EIR - Addresses non-disclosure of personal data, with reference to Data Protection Act 2018 and UK GDPR, which requires that personal data is processed lawfully, fairly, and transparently.

  4. Public Interest Test - A test which is typically required for the exceptions, although recognized as problematic when the information is claimed not to be held, as evidenced by the Commissioner’s published guidance and referenced within the case.

  5. Balance of Probabilities - The standard of proof used to ascertain whether a public authority holds the requested information, as discussed in “Bromley and others v Information Commissioner and the Environment Agency” and “Oates v Information Commissioner and Architects Registration Board”.

  6. Legitimacy of Changing Positions by a Public Authority - The case of “Birkett v DEFRA” recognized that a public authority can rely on late changes in the process concerning its decision to release information under the EIR.

Outcomes

The Tribunal’s decision produced mixed outcomes:

  1. For question 1, it was determined that regulation 13 EIR was wrongly applied as the scope of the request did not entail consideration of personal data, hence the initial decision was not in accordance with the law and the Tribunal issued a substituted Decision Notice.

  2. For questions 2-5, the Tribunal upheld the Commissioner’s Decision Notice after evaluating the balance of probabilities and concluded that there was no need to consider the public interest balancing test due to the absence of information.

The case highlights the onus on the appellant to provide tangible evidence that undermines the position of the public authority or the Information Commissioner. The suspicion of the appellant alone, without substantiation, was insufficient to sway the Tribunal’s decision.

Conclusion

The Tribunal’s analysis in David Bennett v The Information Commissioner & Anor underscores the rigour applied to EIR requests and the protection of personal data under regulation 13 EIR. It reinforces the principle that any public authority’s claim of not holding information is subject to a balance of probabilities test. The decision exemplifies the Tribunal’s careful balancing of transparency obligations within environmental information regulations against the duties to protect personal data as well as to address public interest concerns. It also tolerates procedural flexibility wherein public authorities may alter their positions provided there is no evidence of evasion or ulterior motive. This case is a significant reference point for legal professionals involved in information law and public authorities dealing with similar requests under the EIR.