Tribunal Clarifies EIR Obligations in David Callister Case on Environmental Information Disclosure

Citation: [2024] UKFTT 94 (GRC)
Judgment on

Introduction

In the First-tier Tribunal case of David Callister v Information Commissioner & Westmorland and Furness Council, the legal discourse centered on the proper application of the Environmental Information Regulations 2004 (EIR). The Tribunal analyzed the obligations of a public authority to disclose environmental information and the methodology used by the authority to determine whether such information is held. The decision offers insight into the intricacies of information rights law in the UK, the balance of probabilities standard, and the public interest test under the EIR.

Key Facts

David Callister, the appellant, requested information concerning a wetlands scheme from the Council, which responded affirmatively that no information was held. Callister received contrary information in a letter from National Highways to Tim Farron MP, prompting a follow-up request for confirmation of no documents held about the scheme. Upon another negative reply from the Council and an internal review, Callister appealed to the Information Commissioner, who upheld the Council’s stance. The case then proceeded to the Tribunal.

The crux of the appeal was whether the Council adequately searched for the requested information and whether any information was indeed held. Callister argued that the limited searches, considered a “token gesture,” were inadequate. However, the Council and the Information Commissioner asserted that all reasonable and necessary searches had been conducted, negating the holding of any further information concerning the Appellant’s field.

The Tribunal invoked several legal principles laid down by the EIR:

  • Regulation 5(1) demands that public authorities holding environmental information make it accessible upon request, subject to certain exceptions.
  • Regulation 12(4)(a) allows a public authority to deny disclosure when it does not hold the information at the time of request.
  • Regulation 12(1)(b) obliges the authority to balance the maintenance of exceptions against the public interest in disclosing the information.

These principles were applied in light of the Tribunal’s duty to assess whether the Council had fulfilled its regulation 5(1) obligation.

From the case of Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072), the Tribunal distilled the balance of probabilities standard: it mandated a holistic evaluation of the authority’s initial analysis, the subsequent search scope and execution, and any other relevant findings.

Outcomes

Ultimately, the Tribunal adjudicated that:

  1. The Council had conducted a reasonable search. The searches, confined to the mailboxes of two individuals intimately involved with the scheme and with direct knowledge of the matter, were found methodical.
  2. The Council held no information specific to Callister’s field at the request time, in accordance with regulation 12(4)(a).
  3. In aligning with regulations 12(1)(b) and 5(4), the public interest in maintaining the exception (non-disclosure) prevailed over the interest in disclosing non-existent or non-held information.

Conclusion

In concluding David Callister v Information Commissioner & Westmorland and Furness Council, the Tribunal adhered to established EIR principles, emphasizing methodical search processes and the balance of probabilities in evaluating information holding. It reaffirmed that an authority’s technical involvement may not extend to holding information about property ownership or value within environmental development projects. Most critically, the case underscores that the EIR’s public interest test will always weigh heavily toward nondisclosure when the sought-after information simply does not exist within the public authority’s records. The Tribunal’s application of these principles ensures legal clarity and reinforces authority obligations under the EIR.

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