Tribunal Rules in Favor of Disclosure in EIR Case, Setting Precedent for Proceedings Interpretation and Confidentiality Exceptions

Introduction

In the case of Mark Jopling Obo Udney Park Playing Fields Trust Limited v The Information Commissioner & Anor [2024] UKFTT 163 (GRC), the First-tier Tribunal (General Regulatory Chamber) presided over an appeal concerning the disclosure of information under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations (EIR). This appeal focused on the exceptions to disclosure outlined in regulation 12(5)(d) and (e) of the EIR, the interpretive ambit of proceedings under the EIR, and the adverse effect of disclosure on confidentiality of commercial or industrial information.

Key Facts

The Appellant, Mark Jopling representing Udney Park Playing Fields Trust Limited, requested information from the London Borough of Richmond Upon Thames Council regarding pre-application advice for development of local playing fields. The Council declined to disclose the information, citing exemptions under regulation 12(5)(f), (d), and (e) of the EIR. Initially, the Information Commissioner upheld the Council’s decision. However, upon appeal, the Tribunal found that the non-disclosure under regulation 12(5)(f) was not justified and further considered the applicability of regulation 12(5)(d) and (e).

Legal Principles

The Tribunal examined whether the requested information was encompassed by the definition of “proceedings” under EIR regulation 12(5)(d), invoking prior case law such as the Department for the Economy (Northern Ireland) v Information Commissioner and White [GIA/85/2021], which required “proceedings” to imply formal decision-making stages, not including every action or meeting held by an authority.

The Tribunal determined that the ‘Formal pre-application service’ did not fall within the scope of “proceedings” as it involved informal officer advice rather than formal statutory decision-making processes. Thereby, the regulation 12(5)(d) exception was deemed non-applicable, given the lack of formality and absence of decision-making powers in the pre-application advice scenario.

Furthermore, in considering regulation 12(5)(e), the Tribunal evaluated whether the confidentiality of commercial or industrial information was protected by law and if such confidentiality would be adversely affected by disclosure. The Tribunal referred to the Information Commissioner’s guidance, which details a four-stage test to determine if the exception is engaged. The dispute centered on whether disclosure would indeed adversely affect confidentiality protecting legitimate economic interests.

The Tribunal concluded that no specific or substantive evidence was presented suggesting that competitive harm would ensue from disclosure, thereby rendering the exception under regulation 12(5)(e) inapplicable.

Outcomes

The Tribunal decided in favor of disclosure, rejecting the applicability of both regulation 12(5)(d) and (e), and ordered the Council to release the requested information, subject to redaction of personal information concerning individuals. This decision augmented the scope of information that must be disclosed under the EIR, setting a precedent that may influence the interpretation of “proceedings” and the threshold for establishing “adverse effect” on confidentiality in future cases.

Conclusion

In Mark Jopling Obo Udney Park Playing Fields Trust Limited v The Information Commissioner & Anor, the Tribunal illuminated the narrow interpretation of “proceedings” under regulation 12(5)(d) and reaffirmed the high threshold for proving an “adverse effect” under regulation 12(5)(e) of the EIR. The decision signifies a development in the jurisprudence on environmental information transparency, underlining the meticulous burden of proof required by public authorities when withholding information from disclosure.