Tribunal Rules in Favor of Disclosure in Thomas John Brooks v The Information Commissioner Case Under Environmental Information Regulations 2004

Citation: [2023] UKFTT 964 (GRC)
Judgment on

Introduction

In the matter of Thomas John Brooks v The Information Commissioner ([2023] UKFTT 00964 (GRC)), the UK First-tier Tribunal (General Regulatory Chamber) on Information Rights was tasked with adjudicating on an appeal concerning the refusal to disclose environmental information. This case illustrates key legal principles within the context of the Environmental Information Regulations 2004 (EIRs), particularly concerning exceptions to the disclosure of such information and the public interest test.

Key Facts

Thomas John Brooks (“the Appellant”) requested information from Gwynedd Council (“the Council”) related to a planning application and subsequent development activities on a site, which the Appellant believed affected the risk of flooding. The Information Commissioner upheld the Council’s refusal to disclose parts of the requested information, citing regulation 12(5)(b) of the EIRs (course of justice). The Appellant contended that the Commissioner failed to adequately investigate and consider the public interest in disclosure.

The Tribunal’s analysis was grounded on several key regulations:

  1. Regulation 12(1)(a) of the EIRs: An exception to the disclosure of environmental information must apply, and the public interest in maintaining the exception must outweigh the interest in disclosing the information.

  2. Regulation 12(5)(b) of the EIRs: The Tribunal considered whether the exception related to the course of justice, the ability to receive a fair trial, or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature was engaged. For this regulation to apply, disclosure of the information must adversely affect one of these areas.

  3. Regulation 2(1) and 12(2) of the EIRs: The broad definition of ‘environmental information’ and the presumption in favor of disclosure were also examined.

  4. General principles of the course of justice: Established by previous case law, these outline the circumstances in which a public authority’s inquiry can be prejudiced by disclosure, applying the standard of ‘more probable than not’.

Outcomes

The Tribunal identified several critical errors in the application of the legal principles by the Information Commissioner:

  • Misapplication of regulation 12(5)(b): It was determined the Commissioner incorrectly concluded that an ongoing investigation itself was sufficient to engage regulation 12(5)(b). The Tribunal clarified that the regulation requires evidence that disclosure would likely adversely affect the inquiry or course of justice. Here, evidence of any potential prejudice was lacking.

  • Lack of substantial evidence: The Tribunal pointed out the absence of any substantive evidence that releasing the disputed information would detrimentally impact any criminal or disciplinary inquiry, or the course of justice.

  • Interpretation of “adversely affect”: The Tribunal drew a distinction between hypothetical (‘could’) and probable (‘would’) adverse effects, supporting the argument that potential effects were not sufficient to meet the threshold for the application of the regulation.

Consequently, the Tribunal allowed the appeal and issued a Substituted Decision Notice, directing Gwynedd Council to disclose the requested information within a specified timeframe, subject to redaction of personal data in accordance with the EIRs.

Conclusion

In Thomas John Brooks v The Information Commissioner, the Tribunal’s findings emphasized the importance of precise application of the EIRs when public authorities or in this case, the Information Commissioner, decide on disclosing environmental information. The case further reinforces the principle that an exception to disclosure under the EIRs must be supported by concrete evidence of probable adverse effects, and not merely on the possibility of such effects. This decision serves as a noteworthy precedent for ensuring that public interest is duly weighed against the arguments for withholding environmental information under the EIRs.