Ian Driver v The Information Commissioner

The EIRs provide individuals with a general right of access to environmental information held by public authorities, subject to some exceptions. Regulation 5(1) provides:

The term ‘environmental information’ is defined in regulation 2(1) which, so far as is material, states:

The definition of ‘environmental information’ is to be given a broad meaning in accordance with the purpose of the underlying European Council Directive which the EIRs implement (Direction 2004/4/EC).

Therefore, pursuant to regulation 5(1), a person who has made a request to a public authority for ‘environmental information’ is entitled to have that information made available to them, if it is held by the public authority. However, that entitlement is subject to the other provisions of the EIRs, including some exceptions and qualifications which may apply even if the requested environmental information is held by the public authority. The opening wording of regulation 5(1) (that is, the wording immediately preceding the extract of that regulation quoted above) provides:

Part 3 of the EIRs contains various exceptions to the Duty to Disclose. It is therefore important to note that the EIRs do not provide an unconditional right of access to any environmental information which a public authority does hold.

In order for some exceptions to the Duty to Disclose to be engaged, there must be some prejudice to the matters referred to in the specific exceptions. These are known as ‘prejudice-based’ exceptions. Other exceptions apply only to a particular category or class of environmental information, which are known as ‘class-based’ exceptions.

Requests for ‘environmental information’ are normally dealt with under the EIRs rather than FOIA, pursuant to section 39(1) (which contains an exemption to disclosure of environmental information under FOIA).

As noted, Part 3 of the EIRs contains various exceptions to the Duty to Disclose. Within Part 3 of the EIRs, regulation 12(4)(d) is applicable for the purposes of the appeal.

So far as is relevant, regulation 12 provides:

Regulation 12(4)(d) is a class-based exception. This means that it is engaged if the information in question falls within its scope; it is not necessary to show that disclosure would have any particular adverse effect in order to engage the exception.

In summary, therefore, for the purposes of the appeal: a public authority may refuse to disclose environmental information which is requested if:

Pursuant to regulation 12(2), a public authority must apply a presumption in favour of disclosure of environmental information.

Case law has established that this presumption serves two purposes:

An issue which we needed to determine was whether a stay of proceedings was required in respect of the appeal, in light of the O’Hanlon case (see paragraph 67). We concluded that a stay was not necessary, for the reasons we refer to below in respect of Ground 2.

Given our remit set out in paragraph 20 (and summarised in paragraph 21), the primary issue which we needed to determine was whether the Commissioner was correct in concluding, in the Decision Notice, that the Council could rely on regulation 12(4)(d) to withhold the Requested Information.

Accordingly, whilst we refer below to the Appellant’s grounds of appeal for consistency and completeness, our decision also addresses the fundamental questions of whether the Commissioner was correct to conclude, in the Decision Notice:

We start by addressing whether the EIRs applied to the Request, as this is relevant to aspects of the Appellant’s grounds of appeal and subsequent submissions. It is also important to ensure that the correct regime (FOIA or the EIRs) is identified, for the purposes of our remit in considering the lawfulness of the Decision Notice (and our consideration of the issues in the appeal generally).

During the Commissioner’s investigation, the Council submitted that the Requested Information was ‘environmental information’ for the purposes of regulation 2(1) on the basis that the Requested Information:

We find that the EIRs do apply to the Request. The Requested Information fundamentally relates to information regarding the Project. The Appellant did not dispute that the Project entailed the works as described by the Council in the preceding paragraph. We therefore find that the Requested Information relates to measures such as plans, programmes, agreements and activities affecting or likely to affect the elements of the environment (in each case, as referred to in regulation 2(1), set out in paragraph 27). Also, as we noted in paragraph 28, the definition of ‘environmental information’ is to be given a broad meaning.

Consequently, we find that the Decision Notice was correct to conclude that the Request sought ‘environmental information’ for the purposes of the definition of ‘environmental information’ in regulation 2(1).

For convenience, we use the term “information” below to refer (where the context permits) to environmental information within the scope of the EIRs.

We also make the following findings in respect of the Request (which are relevant for the purposes of our discussions below).

We find that the Request sought the following two distinct categories of information:

Given that Part 1 of the Request referred to the amount of money “spent” and amounts “paid”, we interpret Part 1 of the Request as seeking to know the amount of money which, essentially, had gone out of the Council’s bank account. This is in contrast to invoices which the Council may have received in connection with the Project or amounts accrued in anticipation of potential future expenditure, because these may not be final or may be subject to dispute (for example, receipt of an invoice does not necessarily represent an agreed amount due to be paid).

As Part 2 of the Request was asking if the Council was liable to pay any more money for the completion of the Project, and it referred to “estimations” of those costs, we interpret Part 2 of the Request as seeking to know the details of any further sums which the Council was liable to pay in the future in respect of the Project (namely, beyond the amounts already actual spent by the Council, as covered by Part 1 of the Request).

The opening line of the Request specifically sought information “as of the date of the receipt” of the Request. We consider that the wording of the Request should be read plainly, based on its express terms. It clearly sought the Requested Information as of the date of receipt of the Request. The Request was sent by email and we find that it was therefore ‘received’ by the Council on the date it was sent (31 March 2024). Accordingly, we find that the Request was seeking the Requested Information as matters stood on 31 March 2024.

We therefore find that:

As we have noted, during the course of the Commissioner’s investigation, the Council considered that the Request should be considered under the EIRs (rather than FOIA). The Appellant contended that the Commissioner was wrong to accept the Council’s late reliance on the EIRs (instead of FOIA), on the basis that the EIRs contained a “more restrictive” exemption which therefore avoided the disclosure of the Requested Information.

As we have noted, our remit relates only to the Decision Notice. Consequently, it is not within our power to determine matters relating to previous decisions or responses of the Council in respect of the Request. It is the lawfulness of the Decision Notice which is applicable for the purposes of the appeal and, as we have also noted, the Decision Notice correctly concluded that the EIRs applied to the Request.

Moreover, case law has established that a public authority is subsequently entitled to rely on new exemptions which have not been raised earlier by it, even being entitled to raise new exemptions at the stage of an appeal before the First-tier Tribunal. This is so even if those exemptions were not raised by the public authority in its response to a request for information under FOIA or the EIRs, any subsequent internal review of that response or in its dealings with the Commissioner when the Commissioner is investigating a complaint relating to that request. Accordingly, it was lawful for the Council to rely on new exceptions under the EIRs during the course of the Commissioner’s investigation prior to the issue of the Decision Notice.

For the same reasons, we do not accept the Appellant’s argument that it was wrong of the Commissioner to allow the Council to change its response to the Request from FOIA to the EIRs on the basis that the EIRs had a “more restrictive” exemption. There was no error in law in the Decision Notice in respect of allowing the Council to rely on exceptions under the EIRs.

Additionally, the Commissioner (as he pointed out in his response to the appeal) made no finding on section 22 in the Decision Notice. It was regulation 12(4)(d) which the Council relied on and which the Commissioner concluded in the Decision Notice was engaged in respect of the Request. Accordingly, regulation 12(4)(d) was the exception which was applicable for the purposes of the Decision Notice and therefore applicable for the scope of the appeal (and not section 22).

Ground 2 was the Appellant’s contention that switching from FOIA to the EIRs also allowed for the consideration of information and events which occurred after the Request. Essentially, the Appellant argued that the Commissioner had wrongfully considered information and events from the date of the Request to the point of the Council’s reconsideration of the Request under the EIRs.

The Commissioner disputed that, stating that he considered the circumstances as they existed at the date of the Request and that this was reflected in paragraphs 9 and 14 of the Decision Notice. We agree with the Commissioner that the Decision Notice clearly referred to the position as at the date of the Request.

The Commissioner also submitted that case law had established (citing the Montague case, amongst others) that the time at which to consider the Public Interest Test is the date of a public authority’s response to a request (or, if it responded late, 20 working days after the date of receipt of the Request, in accordance with regulation 5(2)). In his response to the appeal, the Commissioner stated that the relevant date in this case was 30 April 2024 (being 20 working days following the Council’s receipt of the Request, as 1 April 2024 was a bank holiday) – this was on the basis that the Council responded late to the Request (on 3 May 2024).

The Appellant argued that the relevant date for the purposes of the Public Interest Test was 11 February 2025, because that was the date of the Council’s communication treating the Request as subject to the EIRs (as referred to in paragraph 11). The Appellant considered that this should be treated as the date of the Council’s initial refusal of the Request under the EIRs regime. In this regard, the Appellant also relied on the Montague case, on the basis that it stated

The Appellant therefore contended that consideration of the Public Interest Test would mean taking into account all relevant public interest matters prior to 11 February 2025.

We consider that there is some inconsistency in the Appellant’s arguments, in that he argued that the Commissioner had wrongfully considered information and events up to the point of the Council’s reconsideration of the Request under the EIRs (on 11 February 2025), whilst also arguing that the Public Interest Test should include matters prior to that date. However, we consider that such inconsistency is not material given our comments below.

For completeness, we do not accept the Appellant’s assertion that the Commissioner considered information and events from the date of the Request (31 March 2024) to the point of the Council’s reconsideration of the Request under the EIRs (11 February 2025), for the reasons given in paragraph 59. We therefore reject the Appellant’s arguments that switching from FOIA to the EIRs meant that the Commissioner had wrongfully considered information and events occurring after the date of the Request.

Prior to the hearing of the appeal, the Upper Tribunal issued its decision in the O’Hanlon case. In summary (so far as is relevant for current purposes), the O’Hanlon case decided that the correct time for considering both the application (or engagement) of exceptions under the EIRs and the associated Public Interest Test was the time at which the public authority concluded its internal review of a request under regulation 11 (where such an internal review was undertaken).

In his separate written submissions (referred to in paragraph 24), the Commissioner stated that he was seeking permission to appeal the Upper Tribunal’s decision in the O’Hanlon case, but that that decision was currently binding on the Tribunal. Accordingly, the Commissioner stated that (in contrast to his position in his response to the appeal, set out in paragraph 60) the relevant date in this case was 11 February 2025, being the date when the Council first notified the Appellant of its reliance on the exception in regulation 12(4)(d), as opposed to handling the Request under FOIA.

Essentially, therefore, both the Commissioner and the Appellant considered that the relevant date was 11 February 2025. However, the Commissioner stated that the Decision Notice was based on the Commissioner’s understanding of the law prior to the Upper Tribunal’s decision in the O’Hanlon case and that consequently he did not investigate the position as at 11 February 2025. The Commissioner accordingly invited the Tribunal to stay the proceedings in the appeal pending the determination of his application to appeal the O’Hanlon case (and potentially until the Court of Appeal had made a decision, should permission to appeal be granted). The Commissioner’s suggestion of a stay was premised on whether the Tribunal would potentially form the view that considering the engagement of regulation 12(4)(d) and the application of the Public Interest Test as matters stood at 11 February 2025 would make any material difference to the outcome of the appeal (as opposed to considering the position at 30 April 2024, as previously suggested by the Commissioner).

We concluded that it would make no material difference to the outcome of the appeal whether the relevant date was 30 April 2024 or 11 February 2025 (and accordingly that a stay of proceedings was not required), for the following reasons.

As we have set out, Part 1 of the Request was seeking the total amount of money actually spent by the Council on the Project, as at 31 March 2024. Essentially, that is the ‘threshold’ date in respect of the Part 1 Information. Consequently, we find that it would make no difference whether the engagement of regulation 12(4)(d) was considered as at either 30 April 2024 or 11 February 2025. This is because, regardless of which of those dates was used, Part 1 of the Request would still relate to the total amount of money actually spent by the Council on the Project as at 31 March 2024.

Likewise, given our finding that Part 2 of the Request was seeking the amount of any further sums which the Council was liable to pay in respect of the Project after 31 March 2024, it would make no difference in respect of Part 2 of the Request whether the engagement of regulation 12(4)(d) was considered as at either 30 April 2024 or 11 February 2025. Again, this is because (regardless of which of those dates was used), Part 2 of the Request would still relate to the amount of any further sums which the Council was liable to pay in respect of the Project after 31 March 2024.

Regarding the Public Interest Test, we find that this is not applicable in respect of Part 1 of the Request, for the reasons we set out below. In respect of Part 2 of the Request, we conclude that any assessment of the Public Interest Test would not be affected whether it was considered as at 30 April 2024 or 11 February 2025, also for the reasons given below.

In summary, for the reasons we have given, we find that it was immaterial whether the engagement of regulation 12(4)(d) in respect of the Request, or the application of the associated Public Interest Test, was considered as at either 30 April 2024 or 11 February 2025.

Ground 3 was the Appellant’s assertion that the Commissioner did not give fair and proper consideration to material which was already in the public domain related to the Request.

The Appellant’s arguments in respect of Ground 3 related to two issues – the engagement of regulation 12(4)(d) and the application of the associated Public Interest Test. We address these issues, respectively, under separate headings below.

In Ground 4, the Appellant argued that the Commissioner did not give fair and proper consideration to public interest arguments in favour of disclosing the Requested Information. Ground 4 therefore related to the Public Interest Test, which (as noted in the preceding paragraph) we address below.

The Appellant argued, in respect of Ground 3, that (in summary) the Council had previously released information to him which was the same as the Requested Information. The Appellant referred to similar previous requests for information which had been made by him to the Council, regarding previous financial periods. The Appellant stated that he had submitted annual information requests to the Council in respect of the income and expenditure relating to the Port, which he used to write and publish articles about the annual financial performance of the Port, including year on year comparator tables. The Appellant explained that, in respect of such similar previous requests, the information had been disclosed to him by the Council.

The Appellant’s position was that, as the same/similar information had been requested and disclosed previously (including in respect of capital expenditure on the Project), there was no basis for refusing to disclose the Requested Information in this instance.

Whilst we acknowledge the Appellant’s point, we should reiterate that the scope of our jurisdiction relates to the lawfulness of the Decision Notice. The Decision Notice itself relates to the specific Request and not any other requests for information. Accordingly, our remit is to consider the lawfulness of the Decision Notice in respect of the Commissioner’s findings regarding only the Request. Consequently, any previous disclosure of information by the Council in respect of other requests is not a relevant factor for us to take into account in considering whether regulation 12(4)(d) is engaged.

Moreover, any previous disclosure of information by a public authority (whether or not in respect of a request made under FOIA or the EIRs) does not set a precedent meaning that similar information must be disclosed in the future. In other words, any such disclosure does not preclude a public authority from seeking to rely on exemptions or exceptions for disclosure of information under FOIA or the EIRs, even if it has disclosed similar information previously. When considering whether a public authority can rely on any exemptions or exceptions for disclosure of information, each request must be considered and determined on its own merits, in respect of the specific relevant circumstances.

For the same reasons, any conclusions in a previous decision notice issued by the Commissioner as to whether or not a public authority could rely on any particular exemptions or exceptions regarding a request for similar information would not normally be material to the Tribunal’s considerations when determining an appeal brought before it.

In this case, we consider that it is immaterial whether or not the Council disclosed similar information to the Appellant previously. The relevant question before us was whether the Commissioner was correct to conclude that regulation 12(4)(d) was engaged in respect of the Request (irrespective of any previous disclosure by the Council of similar information for other financial periods).

We find that regulation 12(4)(d) was not engaged in respect of Part 1 of the Request. This is because, as we have noted, Part 1 of the Request was essentially seeking to know how much money had gone out of the Council’s bank account in respect of the Project, as at 31 March 2024. It is self-evident that this cannot comprise material which is still in the course of completion or is incomplete data and that, on the balance of probabilities, the Council must hold such information.

We therefore do not accept the Commissioner’s argument, insofar as Part 1 of the Request is concerned, that he was entitled to accept the Council’s submissions that the itemised costs and total costs of the Project were still being collected and modified subject to agreement with suppliers. Similarly, we disagree with the Commissioner’s view that the Part 1 Information relates to the costings for the Project that are ongoing and costs that the Council was still actively seeking to agree with others.

In contrast, however, we consider that the Commissioner’s position outlined in the preceding paragraph was correct in respect of Part 2 of the Request. As we have noted, whereas Part 1 of the Request was seeking the total amount of money actually spent on the Project as at 31 March 2024, Part 2 of the Request was seeking the amount of any further sums which the Council was liable to pay in respect of the Project after that date.

Consequently, because Part 2 of the Request was seeking the amount of any further sums which the Council was liable to pay in respect of the Project after 31 March 2024, we consider that the Commissioner was correct to consider that the Part 2 Information comprised material or information in the course of completion or incomplete data.

It is evident from the Council’s response to the Request that further amounts were due to be paid relating to the Project. In that regard, Part 2 of the Request was therefore partially responded to. However, the Council clearly stated that it was still in the process of finalising the costs of the Project. As recorded in the Decision Notice, the Council also explained to the Commissioner, during the course of his investigation, that because the costs were still being finalised, it did not know the full amount due to be spent. The Council also explained that it was working with its suppliers to agree the final cost figures (stating that it was also “still under contract” with some suppliers).

We therefore find that the Part 2 Information related to amounts which would not be known or final and consequently comprised material or information in the course of completion or incomplete data. We consider that this is so, even though Part 2 of the Request referred to “estimations” of costs, for the following two reasons. First, we find that it may not have been practicable for the Council to provide estimations, given that the relevant information was subject to agreement and, as we referred to, may therefore be subject to dispute (but also see our comments below regarding the Public Interest Test). Secondly (and more importantly), Part 2 of the Request sought details of the estimations to be provided in the same manner as set out in Part 1 of the Request. As Part 1 of the Request asked for the information to be provided in an Excel spreadsheet on an “item-by-item basis”, we find that the Council was not in a position to provide that detail of information (again, given that details of costings were still subject to agreement with the Council’s suppliers).

We would note, incidentally, that the Council also stated to the Commissioner during his investigation that it considered that the Requested Information “does not relate to estimated figures”. We consider that view to be mistaken, given that Part 2 of the Request did seek ‘estimations’ of the future costs, but we consider the Council’s mistaken view to be immaterial (as the Council would be unable to provide the requested ‘estimations’ anyway, for the reasons referred to in the preceding paragraph).

In respect of the points above regarding the date of the Council’s communication to the Appellant on 11 February 2025, we also find that the Part 2 Information was in the course of completion or incomplete as at that date. This is because the Council confirmed that the position was unchanged in its communication to the Appellant on that date. That communication reiterated that the Council was still under contract with suppliers and that the future/final costs of the Project were still unknown and subject to agreement.

In summary, tor the reasons we have given, we find that regulation 12(4)(d) was not engaged in respect of Part 1 of the Request, but was engaged in in respect of Part 2 of the Request.

As we have noted, the Appellant challenged the findings of the Decision Notice in respect of the Public Interest Test. In summary, the Appellant considered (as referred to in Ground 4) that the Commissioner did not give fair and proper consideration to public interest arguments in favour of disclosing the Requested Information.

Given our finding that regulation 12(4)(d) was not engaged in respect of Part 1 of the Request, it follows that the Public Interest Test is not applicable to Part 1 of the Request.

In respect of Part 2 of the Request, after taking into account the various factors for and against disclosure of the Requested Information, we conclude that the Public Interest Test favours maintaining the exception in regulation 12(4)(d).

In summary, the material public interest factors favouring disclosure of the Part 2 Information which we took into account were:

We also took into account, as part of our consideration of all the circumstances, the Council’s previous disclosure of other similar information in response to the other requests made by the Appellant. However, we considered (mainly for the reasons we have already referred to) that disclosure of similar information to the Appellant was not a material factor in the Public Interest Test favouring disclosure of the Part 2 Information.

In summary, the material public interest factors against disclosure of the Part 2 Information which we took into account were:

We recognise that there is a strong public interest in transparency and scrutiny, and in respect of the activities and finances of the Port and the Project, particularly having regard to the sums involved. The Appellant also argued, on a related note, that because the Project aims to turn around the financial fortunes of the Port by attracting more trade, disclosure of the Part 2 Information would enhance the public interest in the financing and development of the Port. However, given that the Part 2 Information is incomplete, we consider that this militates against the view that disclosure of it would assist in the furtherance of those public interests.

We also acknowledge that there is a general public interest in disclosing environmental information, having regard also to the environmental concerns raised by the Appellant. However, taking into account the nature of the Part 2 Information (which relates only to the potential costs involved in the Project), we likewise consider that disclosure of it would do little to further the public interest in the environmental issues.

In contrast, we consider that substantial weight should be afforded, in particular, to the Council’s concerns regarding the negotiations with its suppliers. In our view, there is a real and significant risk that disclosing the Part 2 Information would be prejudicial to the Council’s negotiating position with its suppliers, given that the costs in question are still subject to agreement and that Part 2 of the Request was seeking an ‘item by item’ breakdown of the costs. This is because, if the Council was to disclose the Part 2 Information, we consider that that would indicate to the Council’s suppliers that the Council considers it may be liable to pay those costs.

A relevant consideration in this regard is related to the concerns raised by the Appellant (and taken into account as a factor favouring disclosure of the Part 2 Information) in respect of the amount of public money spent on the Project. Given the concerns about the expenditure involved, we find that there is a very strong public interest in protecting the Council’s position in respect of future expenditure, in connection with its negotiations with its suppliers regarding costs which are subject to agreement.

We also agree with the Commissioner’s view in the Decision Notice that there is public interest in the Council having the ‘safe space’ needed to discuss and reach decisions associated with the Project away from public scrutiny and distraction, especially when the Part 2 Information is not information in a final or agreed position. We are also mindful that, once the relevant information is agreed and finalised, there will be publication of it in due course.

On balance, therefore, we find that the public interest factors favouring maintaining the exception in regulation 12(4)(d) outweigh the public interest in disclosing the Part 2 Information.

Given our findings above, we consider that any assessment of the Public Interest Test in respect of the Part 2 Information would not be affected whether it was considered as at 30 April 2024 or 11 February 2025. Fundamentally, this is because the relevant public interest factors we have referred to would not be affected regardless of which of those dates was applied (which, in turn, is linked to our findings about the nature of the Requested Information).

As we have noted:

Regulation14(2) places a duty on a public authority to issue a refusal notice explaining why it has refused a request for information no later than 20 working days after the date of receipt of the request for information.

Pursuant to regulation 11(4), where a valid request for an internal review has been made, a public authority must notify the requestor of the outcome of its internal review no later than 40 working days after the date of receipt of the internal review request.

The Commissioner did not address this in the Decision Notice but, given Council’s delay in responding to the Request and in providing the outcome of its internal review (and given that the Request should have been responded to under the EIRs rather than FOIA), we find that the Council breached regulation 14(2) and regulation 11(4).

For all of the reasons we have given, we find that:

We also find that the Decision Notice erred in not concluding that the Council had breached regulation 14(2) and regulation 11(4), although this is not material to our decision.

We therefore allow the appeal in part and we make the Substituted Decision Notice as set out above.