Tribunal Upholds Non-Disclosure Decision in Gail Judson v Information Commissioner Case Regarding Environmental Information Regulations

Citation: [2023] UKFTT 919 (GRC)
Judgment on

Introduction

In Gail Judson v Information Commissioner & Anor [2023] UKFTT 919 (GRC), the First-tier Tribunal (General Regulatory Chamber) addresses an appeal concerning the Environmental Information Regulations 2004 (EIR) and Freedom of Information Act 2000 (FOIA). The case focuses on the application of these regulations to a local authority’s claimed non-disclosure of information relating to a deed of dedication and consultation with Fields in Trust regarding land known as King George V fields.

Key Facts

Gail Judson, the appellant, challenged the decision of the Information Commissioner who had upheld the Second Respondent’s (Redcar and Cleveland Borough Council) position that they did not hold the requested information about King George V fields. Judson’s requests aimed to uncover whether the land was protected by a deed of dedication for public recreation in perpetuity and whether Fields in Trust was consulted for a license agreement and planning permission granted to a local football club.

The Second Respondent, in their initial response, cited that they held no such information but provided historical context about the land acquisition and legal advice suggesting that the earlier dedication of the land was unlawful. Judson asserted that contradictory evidence, including interactions with Fields in Trust, indicated that a valid deed must exist and the Respondent must hold the information. The appeal was based on these premises.

The central legal principles addressed pertained to the scope and obligations under EIR for the disclosure of environmental information and the standard of proof to ascertain whether a public authority holds the requested information.

  1. Environmental Information Regulations 2004 (EIR): Regulation 5(1) mandates that a public authority holding environmental information must make it available upon request. The standard for withheld information, under Regulation 12(4)(a), assumes the authority does not hold the information when requested.

  2. Standard of Proof: The Tribunal was guided by the balance of probabilities standard in determining whether information is held by the public authority, underscoring judgments from cases such as Bromley v Information Commissioner and the Environment Agency (EA/2006/0072) and Oates v Information Commissioner and Architects Registration Board (EA/2011/0138). It requires a comprehensive assessment, including the quality and scope of the public authority’s record-keeping systems, search efforts, and the existence of materials pointing to further information within the authority.

  3. Public Interest Test: Under Regulation 12 of EIR, a presumption in favor of disclosure exists, but if the information is not held, there is no applicable public interest assessment for disclosure.

The Tribunal also examined whether the Second Respondent’s approach was transparent and cooperative and whether there was evidence of a motive to withhold the information. It touched upon the significance of an open and transparent dialogue between the authority and information requestor.

Outcomes

The Tribunal concluded that the appellant failed to demonstrate the existence of a deed of dedication, thus dismissing the appeal and upholding the Decision Notice by the Information Commissioner. It determined that:

  • The Second Respondent acted transparently and sought to assist the appellant.
  • The Second Respondent corrected errors promptly and conducted appropriate searches for the requested information, which were not found.
  • There was no evidence to suggest that the Second Respondent was withholding information or had a motive to do so.

Conclusion

The Tribunal’s decision in Gail Judson v Information Commissioner & Anor reiterated the importance of a public authority’s obligation to disclose environmental information under EIR and the discretion afforded to authorities regarding such information, especially in the absence of evidence of possession. The case exemplifies the implementation of EIR principles and the authorities’ mandate to conduct thorough and transparent information searches, even when no direct evidence of information withholding exists. The Tribunal’s meticulous application of the balance of probabilities affirmed that transparency and openness are paramount in complying with EIR, and that the burden to demonstrate the existence of the information rested primarily with the appellant.

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