Ruth Farnsworth v Information Commissioner
[2024] UKUT 206 (AAC)
Diego Lourenco v The Information Commissioner & Anor
28 March 2024
[2024] UKUT 111 (AAC)
Upper Tribunal
A council refused to fully release documents about a development project, claiming it was commercially sensitive. The courts agreed that the council had a good reason to protect some confidential information, even though some people wanted to see everything. The appeal failed because the person challenging the decision raised new points too late.
Key Facts
- •London Borough of Barnet (LBB) refused to disclose an unredacted Outline Business Case (OBC) for the Hendon Hub redevelopment project, citing commercial confidentiality under the Environmental Information Regulations 2004 (EIR).
- •Mr. Tony Mason (later replaced by his husband, Mr. Lourenco) requested the OBC under the EIR and appealed the ICO's decision upholding LBB's refusal.
- •The First-tier Tribunal (FTT) upheld the ICO's decision.
- •Mr. Lourenco appealed the FTT's decision to the Upper Tribunal (UT).
- •The appeal focused on whether the FTT erred in its interpretation of the EIR, the Local Government Act 1972 (LGA), and the public interest balancing test.
Legal Principles
The FTT's jurisdiction in information rights cases is limited to deciding whether an ICO Decision Notice is in accordance with the law; it does not have independent jurisdiction to adjudicate on the LGA.
Fish Legal & Shirley v Information Commissioner & Water Companies [2015] UKUT 0052 (AAC)
The lawfulness of a public interest balancing exercise under the EIR is assessed at the time the public authority refuses disclosure, not at the time of any subsequent appeal.
Maurizi v The Information Commissioner & The Crown Prosecution Service [2019] UKUT 262 (AAC)
Regulation 12(5)(e) of the EIR allows refusal of disclosure if it would adversely affect the confidentiality of commercial or industrial information protected by law to protect a legitimate economic interest.
Environmental Information Regulations 2004
Paragraph 9 of Schedule 12A to the LGA excludes information relating to proposed development from exemption *after* a planning application is submitted.
R (Helen Stride) v Wiltshire County Council [2022] EWHC 1476 (Admin)
An appeal to the UT succeeds only if the FTT erred in law materially.
Case Law
Outcomes
The appeal was dismissed.
The UT found no material error of law in the FTT's decision. The FTT's assessment of the commercial confidentiality exception and public interest balancing was within the reasonable range of options open to it. New arguments raised in the UT appeal were not considered because they were not raised before the FTT.
Similar Cases
Frank Boland v The Information Commissioner
[2024] UKFTT 42 (GRC)
Mark Jopling Obo Udney Park Playing Fields Trust Limited v The Information Commissioner & Anor
[2024] UKFTT 163 (GRC)
Donna Clarke v Information Commissioner
[2024] UKFTT 520 (GRC)
Suzanne Sullivan v Information Commissioner & Anor
[2024] UKFTT 318 (GRC)