Christine Wyatt v The Information Commissioner & Anor

This appeal is against the Commissioner’s Decision Notices (IC-324837-K2B5 and IC-357000-M8D7), both dated 6 February 2025. The Decision Notices held that the Second Respondent ("the Council") was entitled to rely upon Regulation 12(4)(b) (manifestly unreasonable exception) of the Environmental Information Regulations ("EIR") to refuse to comply with the Appellant’s requests for information.

The Tribunal convened an oral hearing which was held remotely using HMCTS’s Cloud Video Platform.

In 1922, Maindy Park in Cardiff was gifted by the Marquis of Bute to the Council subject to restrictive covenants to use the land only as a park, open space, recreation or playground. In 1966, Maindy Park was registered as a charity ("the Trust") of which the Council is the sole trustee. The Trust's objects reflect the 1922 covenants.

Maindy Park includes a velodrome, the last remaining structure of the 1958 Commonwealth Games hosted by Wales. Other major events have taken place there over the years, and world class cyclists have trained there. Several other recreational facilities have been constructed on the site, attracting many participants all year round from the local community and beyond.

Adjacent to Maindy Park is Cathays High School. As local education authority, the Council has been considering expansion of the school on Maindy Park. Such use of the land appears to be incompatible with the Trust's objects.

The Council has therefore been corresponding with the Charity Commission about a possible "land swap" whereby part of Maindy Park would be released from the Trust with an alternative site within Council ownership instead being designated for recreational use by Cardiff residents.

The Council's land swap proposal has proved controversial, stimulating the establishment of a local campaign group called "Save Maindy Park" ("SMP") of which the Appellant ("CW") is a member.

The Commissioner's Decision Notices ("DNs") respond to CW's complaints about the Council's handling of her two information requests set out below:

The Council replied to Request 1 on 17 May 2024 and Request 2 on 13 June 2024. In each case, the Council refused to provide the requested information, citing section 36 of the Freedom of Information Act 2000 ("FOIA") (prejudice to the effective conduct of public affairs).

CW asked the Council to carry out an internal review of their refusal to disclose the information sought by Requests 1 and 2. In neither case was any outcome of such internal review provided.

On 10 August 2024, CW complained to the Commissioner about the Council's refusal of her requests.

CW challenged the Council's view that her requests "were likely to cause a disproportionate cost and burden". She argued that as the Council had already provided the requested documents to the Commissioner, any cost would be minimal and certainly insufficient to engage the exception.

During his investigation, the Commissioner asked the Council to reconsider Requests 1 and 2 under EIR (rather than FOIA) because he considered the information requested to be environmental.

The Council therefore reconsidered and on 10 January 2025 issued a fresh response to Requests 1 and 2. The Council again refused to provide the requested information, this time under the following exceptions: EIR 12(4)(b) (manifestly unreasonable); EIR 12(4)(d) (material in the course of completion); EIR 12(5)(b) (course of justice); and EIR 12(5)(d) (confidentiality of proceedings).

The Commissioner issued his two Decision Notices ("DN") on 6 February 2025. The Commissioner was provided with the requested information as well as further submissions by both CW and the Council.

Each DN concluded that the Council was entitled to refuse Requests 1 and 2 under EIR 12(4)(b) on the basis that they were manifestly unreasonable.

The Commissioner applied guidance that:

The Commissioner further concluded that the cumulative burden created by the relatively large number of related requests had become disproportionate to their value and that complying with Requests 1 and 2 would likely prompt further requests.

Applying the public interest test, the Commissioner accepted that there was strong public interest in disclosure but held that this was outweighed by the public interest in protecting the Council’s limited resources from unreasonable requests. He found that the presumption in favour of disclosure under EIR did not displace the exception.

On 25 February 2025, CW appealed each DN to the Tribunal.

CW submits that each DN was legally wrong in concluding that EIR 12(4)(b) applies and that the Commissioner ought to have exercised his discretion differently when weighing the public interest balance.

In support of her appeal, CW submitted various documents (all included in the Open Bundles), which the Tribunal has read and considered.

CW invites the Tribunal to set aside each DN and require the Council to disclose the requested information.

EIR 2(1) defines 'environmental information" as including information on "the state of the elements of the environment such as…soil, land, landscape…and factors… such as energy, noise…affecting or likely to affect the elements of the environment…" and "measures…such as activities affecting or likely to affect the [above] elements and factors"

EIR 5(1) sets out a specific duty by public authorities to make environmental information available on request and EIR 5(2) provides this shall be "as soon as possible and no later than 20 working days after…receipt of the request".

There are exceptions to public authorities’ duty to make environmental information available. Those pertinent to this appeal are set out in EIR 12, the relevant parts of which provide:

In assessing what is "manifestly unreasonable’" under EIR 12(4)(b), we are bound by. the decision of the Upper Tribunal in Craven v Information Commissioner and DECC [2012] UKUT 442 (AAC) where Judge Wikeley said at para. 30:

In Information Commissioner v Devon County Council & Dransfield [2012] UKUT 440 (AAC) ("Dransfield"),, the Upper Tribunal identified four key issues were relevant when deciding whether a request is vexatious: (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request); and (4) any harassment or distress (of and to staff). However, the Upper Tribunal said these four considerations were not exhaustive nor created a formulaic checklist: a holistic and broad approach was needed.

The Court of Appeal in Dransfield v Information Commissioner [2015] EWCA Civ 454 emphasised “... the high standard set by vexatiousness...."

Under EIR 12(1)(b) a public authority is permitted to withhold information under the exceptions in EIR 12(4) and 12(5) only if the public interest in maintaining the exception outweighs the public interest in disclosing the information.

Section 57 FOIA entitles either the requester or the relevant public authority to appeal to this Tribunal against the Commissioner’s decision notice.

Under s. 58 FOIA, if the Tribunal considers that the decision notice was either wrong in law or, to the extent that the notice involved an exercise of discretion by the Commissioner he ought to have exercised it differently, the Tribunal shall either allow the appeal (or substitute the decision notice) or dismiss the appeal.

The Tribunal can also review any finding of fact on which the decision notice was based.

The burden of proof rests with CW, as appellant, in satisfying the Tribunal that the Commissioner’s decision was legally wrong or involved an inappropriate exercise of discretion.

The parties had submitted written evidence to the Tribunal prior to the hearing, comprising two Open Bundles: 656 pages (including indices) in respect of Request 1 and 681 pages (including indices) in respect of Request 2. The panel additionally had access to two Closed Bundles, one in respect of each Request 1 and 2.

CW has not seen the Closed Bundles which have been withheld from her and the public in accordance with GRC Rule 14(6) and the Tribunal’s Practice Direction on Closed Material. However, the panel has seen and considered those materials.

The Closed Bundle in respect of Request 1 comprises the following copies:

The Closed Bundle in respect of Request 2 contains the following copies:

In the Open Bundles are witness statements from four Council employees. The panel heard oral evidence from three of them.

CW challenges the Council's refusal to disclose the requested information on the following basis.

The Council failed to provide the Commissioner with proper, evidence-based justification for treating her requests as burdensome: no quantitative data was supplied to demonstrate cost or workload impact, despite the Commissioner requesting it. Publicly available data shows the Council had long-standing difficulties complying with FOIA/EIR time limits well before the Maindy Park requests. Significant delays in responding to her requests led to CW's repeated chasers and follow-up requests.

CW's requests pursued a serious purpose, grounded in substantial public-interest concerns about the Council’s stewardship of Maindy Park, a charitable trust. These concerns—including unauthorised leasing, use, and disposal of charity land—align with Charity Commission warnings to local authorities on these topics. Both the Charity Commission and Audit Wales acknowledged these as matters of genuine community concern.

Transparency about the Council’s communications with the Charity Commission is crucial, particularly as regulatory casework is not routinely published and key governance issues came to light only through evidence supplied by the community. Although the Commissioner accepted that the requests had public value, it appears that the Council’s assertions about diminished value and alternative scrutiny mechanisms were accepted without sufficient verification.

Reliance on EIR 12(4)(b) is unfounded and unsupported by evidence. CW’s requests represent a very small proportion of the Council’s overall FOIA/EIR workload and were framed narrowly to minimise the burden of responding to them. The requests are specific, proportionate, and justified by a strong public interest in accountability and transparency.

The Council’s witnesses focused on: (1) operational burden (driven by volume, frequency, internal coordination and legal review), and (2) sensitivity/timing (because the Charity Commission process was ongoing and the material was said to include confidential/privileged communications).

Taken together, the Council’s evidence was that it generally meets statutory FOIA/EIR performance targets but asserted that CW’s pattern of frequent, repetitive and follow-on requests about Maindy Park—42 requests since November 2021, including Requests 1 and 2—has created a disproportionate cumulative burden across the Council, particularly Legal Services, requiring repeated senior legal scrutiny and diverting resources from other core functions.

The Information Request Manager considered that disclosure would not satisfy CW but would likely generate further requests, while Requests 1 and 2 were themselves complex and resource intensive, requiring Monitoring Officer involvement and legal meetings. His personal involvement in CW's requests had diverted him from important record management projects.

The Monitoring Officer approved refusal under multiple EIR exceptions, viewing Requests 1 and 2 as manifestly unreasonable due to their aggregated burden, the live and sensitive nature of the Charity Commission process, risks of misinterpretation of the information, and the inclusion of confidential and legally privileged material, notwithstanding the Council’s general commitment to transparency and prior disclosures.

The Principal Solicitor considered that non-disclosure was justified while the Charity Commission’s statutory process was ongoing. This would in due course have resulted in public disclosure, but as the Council's application for approval of the proposed land swap ceased to be actively pursued, it was ultimately neither determined nor withdrawn.

The Council's evidence justifies treating Requests 1 and 2 as manifestly unreasonable/vexatious under EIR 12(4)(b) (alongside other exceptions originally relied on by the Council).

There are two limbs to the Council's reliance on EIR 12(4)(b): first, the number of requests is manifestly unreasonable; and secondly, the ongoing statutory process with the Charity Commission made disclosure of the requested information manifestly unreasonable.

The Council had initially relied on s.36 FOIA, supported by a Qualified Person’s Opinion explaining that disclosure would prejudice the effective conduct of public affairs because the correspondence was under live consideration by the Charity Commission; disclosure would inhibit full and frank engagement with the regulator; and it would likely trigger further requests causing significant diversion of limited resources.

When the Commissioner required reconsideration under EIR, those same considerations applied. The Council argued that EIR 12(4)(b) requires consideration of all the circumstances; critically, at the time of Requests 1 and 2 a statutory Charity Commission process was ongoing, justifying treating these requests differently from CW’s earlier requests.

CW’s attempt to categorise her requests separately should be rejected: the requests were all connected; all arose after the formation of the SMP campaign group; and all related to Maindy Park. It was therefore reasonable to consider the requests cumulatively and to conclude, in line with ICO guidance on vexatiousness, that their context, history and burden rendered them unreasonable, particularly as some were complex and required extensive cross-departmental input.

The Tribunal was reminded to assess the Commissioner’s DNs at the time they were made, not with hindsight, and to find that the Commissioner correctly applied the presumption in favour of disclosure and the public interest test, committing no error of law or discretion.

Alternatively, the Council relied on further EIR exceptions: EIR 12(4)(d) because Request 1 concerned material still in the course of completion during an ongoing regulatory process; EIR 12(5)(b) because the information was subject to legal advice privilege and disclosure would prejudice the course of justice; and EIR 12(5)(d) because the correspondence formed part of confidential regulatory proceedings requiring a protected space for full and frank communications.

The Council failed to substantiate its reliance on EIR regulation 12(4)(b) because it produced no evidence quantifying the time or resources spent dealing with CW’s requests.

The Council achieved a 90% performance rate in responding to FOIA/EIR requests before CW’s requests and maintained or slightly improved that rate after 2021, showing no cogent evidence of service impairment.

The Council’s claims of legal professional privilege were unsustainable and reliance on the ongoing nature of the Charity Commission process was misplaced, particularly as that application has since been closed, removing any risk of prejudice to a live process.

Significant public interest factors include the misuse of charitable land as a school car park, the grant of a long lease without authorisation, and the Council’s stated intention to use the land for school expansion contrary to restrictive covenants requiring recreational use for the benefit of the community.

The Council was not required to assume the role of sole trustee and its actions as such have damaged public trust and confidence in the charitable sector.

The Council’s true concern was potential challenge by beneficiaries of the Trust to the Charity Commission: the fear of such scrutiny could not lawfully justify refusal under EIR 12(4)(b).

The panel first considered the relevant facts of this case. Based on all the evidence provided, the panel made the following findings of fact on the balance of probabilities. Those findings shown underlined below are disputed, and the panel’s reasoning for each such finding is set out beneath the underlined text.

Having made its findings of fact, the panel considered whether the DNs were in accordance with the law. The panel noted that it was bound by Craven which confirms that “manifestly unreasonable” under EIR 12(4)(b) is essentially equivalent to “vexatious” under s.14 FOIA.

Drawing on ICO guidance, the panel identified the following relevant principles:

The panel found that in respect of Requests 1 and 2:

Although the overall number of CW’s requests might initially suggest vexatiousness, closer analysis shows that:

The panel considered that Requests 1 and 2:

The panel found that the Council’s reliance on FOIA concepts applicable to s. 36 —particularly prejudice, confidentiality and ongoing processes—continued even after the Commissioner directed reconsideration under EIR, though such considerations are irrelevant to EIR 12(4)(b).

This approach led to escalation within the Council before responding to CW's requests, including extensive senior and legal involvement.

The witness evidence indicated that the Council’s concern was primarily with the timing and sensitivity of disclosure of the information sought by Requests 1 and 2 during an ongoing Charity Commission process, rather than with the burden of responding to the requests.

The panel rejects the Council’s late argument that an ongoing statutory process could itself render disclosure manifestly unreasonable, considering that this would impermissibly import a FOIA-style prejudice test into EIR 12(4)(b).

Applying Dransfield, the panel concluded that:

In accordance with its Malnick duty, the panel briefly considered the Council’s alternative reliance on EIR 12(4)(d), 12(5)(b) and 12(5)(d), and concluded that none were engaged: the correspondence sought was complete rather than draft material; legal professional privilege did not apply to letters sent to a third-party regulator; and no statutory or common law basis for confidentiality of the Charity Commission proceedings had been established.

As none of the relied-upon exceptions was engaged, the appeal is allowed and a substitute decision issued.