Womenswold Parish Council v The Information Commissioner

Preliminary matters

1. In this decision , we use the following terms to denote the meanings shown: Commissioner: The Information Commissioner (the Respondent). Council: Womenswold Parish Council (the Appellant). Decision Notice: The Decision Notice of the Commissioner dated 3 April 2024, reference IC-277504-W5T4, relating to the Request. EIRs: The Environmental Information Regulations 2004. FOIA: The Freedom of Information Act 2000 . Relevant Information: The information which the Council considers falls within the scope of the Request and which was provided to the Tribunal by the Council, as referred to in paragraph 37. Request: The request for information made to the Council dated 17 November 2023 (which the Council stated was received by it on 23 November 2023), as referred to in paragraphs 5 and 6. Requested Information: The information which was requested by way of the Request. Requestor: Duncan Field. Tribunal Rules: The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

2. Unless the context otherwise requires (or as otherwise expressly stated), references in this decision : a. to numbered paragraphs are references to paragraphs of this decision so numbered; b. to a regulation are references to the applicable regulation of the EIRs; c. to any section are references to the applicable section of FOIA; and d. to the Commissioner’s “investigation” mean the Commissioner’s investigation, for the purposes of section 50 (as applied by regulation 18), of the Requestor’s complaint relating to the Council’s response to the Request. Introduction

3. This was an appeal against the Decision Notice, which (in summary) found that the Council had not issued a valid response to the Request and which required the Council to either disclose the Requested Information or issue a refusal notice specifying the reasons for not disclosing the Requested Information. Background to the appeal

4. The background to the appeal is as follows. It may be helpful to explain that an ‘ACV’, referred to in the Request, is an ‘Asset of Community Value’. The Commissioner stated in paragraph 12 of the Decision Notice that an Asset of Community Value is defined as: “ …A building or other land is an asset of community value if its main use has recently been or is presently used to further the social wellbeing or social interests of the local community and could do so in the future. The Localism Act states that ‘social interests’ include cultural, recreational and sporting interests. ”. The Request

5. The Requestor contacted the Council and requested information in the following terms: “ I am predominantly looking for emails about me and my pub and the ACV from the last council meeting on 2nd Tuesday in November ”.

6. It appears that the Request was dated 17 November 2023 and hand delivered to the Council. An email from the Requestor to the Council dated 14 December 2023 stated that “a paper handwritten version” was handed to an officer of the Council on 18 November 2023. The Council stated that it was received by it on 23 November 2023. That email confirmed the Request, which included the specific wording set out in paragraph 5 (and as referred to in the Decision Notice).

7. The Council responded on 14 December 2023. It refused to provide the Requested Information, stating: “ After careful consideration, we regret to inform you that your request for access to private casual conversations is denied based on the grounds of exemption due to the absence of a significant public interest. ”.

8. On 15 December 2023, the Requestor emailed the Council, effectively asking it to carry out an internal review in respect of its response to the Request. The Requestor made the following comments regarding the Requested Information: “ It is a written, email conversation deliberating whether or not to renew, ask to retract the existing Asset of Community Value listing on a property in the parish. The deliberations are in the public interest as they reflect the views of the parish council on the matter. Discussions amongst councillors on a parish matter should be in open forum and when not possible, should be minuted and the decision recorded. Further there was advice sought from Canterbury City Council regarding said business. ”.

9. On the same date (15 December 2023), the Council provided the Requestor with a response, stating: “ This isn't the case. A Parish councils deliberate and take decisions at constituted meetings as per statute, and legal advice is exempt from FOI due to legal privilege. ”.

10. Also on the same date (15 December 2023), the Requestor complained to the Commissioner about the Council’s response to the Request.

11. The Commissioner subsequently issued the Decision Notice. The Decision Notice

12. In the Decision Notice, the Commissioner decided that: a. the Requested Information was ‘environmental information’ (and accordingly the Decision Notice was issued under the EIRs); b. whilst the Council had responded to the Request, it did not provide the Requested Information or cite a relevant exception to withhold it and therefore the Council had breached regulation 5(2) and/or regulation 14.

13. Whilst the opening section of the Decision Notice only referred (in paragraph 2) to the Council breaching regulation 5(2) by not providing the Requested Information, it is evident from the other parts of the Decision Notice – paragraph 17 in particular - that the Commissioner had also concluded that the Council had (either additionally or in the alternative) breached regulation 14 by not providing a valid refusal notice.

14. The Decision Notice required the Council to either disclose the Requested Information or issue a refusal notice in accordance with regulation 14 specifying the reasons for not disclosing the Requested Information. The appeal

15. Regulation 18 provides that the enforcement and appeals provisions of FOIA (namely Part IV, including Schedule 3, of FOIA and Part V of FOIA) apply for the purposes of the EIRs, subject to certain modifications.

16. For the reasons we have given in paragraph 38, this was therefore an appeal against the Decision Notice pursuant to the EIRs, in accordance with section 57 as applied by regulation 18. The grounds of appeal

17. Notwithstanding the Commissioner’s finding in the Decision Notice that the EIRs applied, the Council’s grounds of appeal referred only to FOIA.

18. Amongst other things, the Council’s grounds of appeal contained arguments regarding potential exemptions in FOIA for the disclosure of personal data contained within the Requested Information and arguments that the public interest would favour withholding the Requested Information. The Tribunal’s powers and role

19. The powers of the Tribunal in determining the appeal are set out in section 58 (which applies pursuant to regulation 18), as follows: “(1) If on an appeal under section 57 the Tribunal considers— (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may Review any finding of fact on which the notice in question was based. ”.

20. In summary, therefore, the Tribunal’s remit for the purposes of the appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned). Mode of hearing

21. The parties consented to the appeal being determined by the Tribunal without an oral hearing.

22. The Tribunal considered that the appeal was suitable for determination on the papers in accordance with Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and was satisfied that it was fair and just to conduct the appeal in this way. The evidence and submissions

23. The Tribunal read and took account of an open bundle of evidence and pleadings, as well as a copy of the Relevant Information.

24. All of the contents of the above bundle (including the parties’ submissions) were taken into account, even if not directly referred to in this decision. The relevant statutory framework We acknowledge the Practice Direction dated 4 June 2024 ( https://www.judiciary.uk/guidance-and-resources/practice-direction-from-the-senior-president-of-tribunals-reasons-for-decisions/ ) and particularly paragraph 9, which refers to the First-tier Tribunal not needing to specifically refer to relevant authorities. We include references to the applicable legislative framework, to provide relevant context, but have accordingly not set out details of the applicable case law . and legal principles General principles

25. The EIRs provide individuals with a general right of access to environmental information held by public authorities, subject to some exceptions.

26. Regulation 5(1) provides: “ …a public authority that holds environmental information shall make it available on request. ”.

27. Regulation 5(2) states that: “ Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request. ”.

28. 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).

29. The term ‘environmental information’ is defined in regulation 2(1) which, so far as is material, states: “ …any information in written, visual, aural, electronic or any other material form on— (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements… ”.

30. 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). See the Court of Justice of the European Union in Case C-316/01 Glawischnig v Bundesminister fur soziale Sicherheit und Generationen [2003] All ER (D) 145 and the case of Council for Business, Energy and Industrial Strategy v Henney and Information Commissioner [2017] EWCA Civ 8444 .

31. 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: “ Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations… ”.

32. Part 3 of the EIRs contains various exceptions to the duty to disclose environmental information which has been requested. 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. The right of access to information contained in regulation 5(1) is subject to certain other provisions of the EIRs.

33. Where a public authority wishes to rely on any such exceptions to the duty to disclose environmental information , it must do so in accordance with the relevant provisions of regulation 14. Regulation 14

34. So far as is relevant, regulation 14 provides: “(1) If a request for environmental information is refused by a public authority under regulations 12(1) or 13(1), the refusal shall be made in writing and comply with the following provisions of this regulation. (2) The refusal shall be made as soon as possible and no later than 20 working days after the date of receipt of the request. (3) The refusal shall specify the reasons not to disclose the information requested, including— (a) any exception relied on under regulations 12(4), 12(5) or 13; and (b) the matters the public authority considered in reaching its decision with respect to the public interest under regulation 12(1)(b) or, where these apply, regulation 13(1)(b) or (5A). … (5) The refusal shall inform the applicant— (a) that he may make representations to the public authority under regulation 11; and (b) of the enforcement and appeal provisions of the Act applied by regulation 18. ”. Discussion and findings Application of the EIRs

35. As we have mentioned, the Council’s grounds of appeal referred only to FOIA, notwithstanding the Commissioner’s finding in the Decision Notice that the EIRs applied (and that he accordingly issued the Decision Notice pursuant to the EIRs). The Council’s grounds of appeal did not set out any arguments regarding the application of either the EIRs or FOIA.

36. The Commissioner stated in the Decision Notice that he had not seen the Requested Information, but he decided that it was ‘environmental information’ because it was information relating to the designation of an ‘Asset of Community Value’.

37. The Tribunal issued Case Management Directions requiring the Council to provide the Requested Information to the Tribunal. Pursuant to those Case Management Directions, the Council provided the Tribunal with information which it holds which it considers falls within the scope of the Request. We therefore had sight of that information in order to form a view as to whether the Commissioner was correct to designate it as environmental information.

38. We find that the EIRs do apply to the Requested Information, based on our assessment of the Relevant Information. The Relevant Information fundamentally relates to issues connected with the designation of the Requestor’s pub as an Asset of Community Value . We consider that matters relating to designation of an Asset of Community Value are administrative measures and activities affecting or likely to affect the environment, or designed to protect the environment, as referred to in regulation 2(1)(c). Accordingly, we find that the Requested Information comprises ‘environmental information’ for the purposes of the definition of in regulation 2(1).

39. We should comment that the Request potentially covers two distinct aspects of information: information about the Requestor personally and information about his pub (with the latter being the subject of the Asset of Community Value ). From our review of the Relevant Information, there is some overlap of these two aspects, in that some information relating to the Requestor personally may be connected to the issue of his pub as an Asset of Community Value .

40. Because of that potential overlap, and given the wider context, we consider (so far as is necessary for current purposes) that all of the Requested Information relates to matters connected with the designation of the Requestor’s pub as an Asset of Community Value (again, based on our assessment of the Relevant Information). In saying this, we are also mindful of the purposive approach which is to be adopted when considering what is meant by ‘environmental information’ (and having regard to the broad interpretation which is required).

41. It is important to stress, however, that we make no findings regarding the content of the Relevant Information, or the distinction of those two aspects of the Request as applicable to the Requested Information, other than our finding that the EIRs apply. It is not necessary for us to otherwise assess the content of the Relevant Information, given the scope of the appeal to which we refer below.

42. Consequently, it is for the Council to determine, in its response to the Request, whether there are distinct aspects of the Requested Information (including whether any of the Requested Information is the personal data of the Requestor). In that regard, we observe that the Commissioner commented in the Decision Notice (albeit it did not form part of the Commissioner’s decision) that public authorities should consider, when receiving requests for information, whether part or all of the information in question constitutes the requester’s own personal data and whether the request should be processed as a subject access request under the Data Protection Act 2018 .

43. We should also stress that we make no finding that the Relevant Information constitutes all of the information which the Council holds within the scope of the Request. Again, that was not an issue which we needed to determine in the appeal. Also, some of the Relevant Information appears to be outside of the scope of the Request, but again that is also not a matter which we needed to determine for current purposes. Scope of the appeal

44. As we noted in paragraph 18, the Council’s grounds of appeal included arguments regarding reliance on certain exemptions under FOIA and public interest points. As we have found that the EIRs (and not FOIA) apply to the Requested Information then reliance on sections in FOIA would not be appropriate. We have not considered any equivalent regulations of the EIRs, however, because we consider that is not necessary for the following reasons. For the same reasons, we consider that the Council ’s grounds of appeal were not relevant to the issue in the appeal.

45. The Decision Notice found, as we noted in paragraph 12, that the Council did not provide the Requested Information or cite a relevant exception to withhold it. Therefore, as the Council did not rely on any exceptions to disclosure of the Requested Information, the Commissioner did not consider the application of any exceptions in his investigation and he made no findings in the Decision Notice with regard to any such exceptions.

46. As the Commissioner made no findings in the Decision Notice regarding the application of any exceptions with regard to the Requested Information, it was not open to us to consider any such exceptions in the appeal. This is because our jurisdiction, as we referred to in paragraphs 19 and 20, relates only to the lawfulness of the Decision Notice.

47. Rather, given that jurisdiction, the scope of the appeal was to consider whether the Decision Notice correctly determined that the Council had breached regulation 5(2) by not providing the Requested Information and/or that the Council had breached regulation 14 by failing to issue a notice citing legitimate grounds for refusing to provide the Requested Information.

48. Accordingly, the only issue which we needed to determine in the appeal was whether the Commissioner was correct to conclude in the Decision Notice that the Council had breached regulation 5(2) and/or regulation 14 in respect of the Request. Whether the Council breached regulation 5(2) and/or regulation 14 in respect of the Request

49. Pursuant to regulation 5(2), a public authority must disclose environmental information which is requested within 20 working days after the date of receipt of the request.

50. Pursuant to regulation 14(2), if a public authority refuses to disclose all or part of a request for environmental information, it must issue a refusal notice within 20 working days after the date of receipt of the request. Such refusal notice must also, pursuant to regulation 14(3), specify the reasons for the refusal, including any relevant exception in the EIRs which is relied on.

51. We outlined in paragraphs 5 to 9 the factual background regarding the Request and the Council’s response to it. Whilst the Council’s response to the Request on 14 December 2023 refused to provide the Requested Information and referred to “ the grounds of exemption due to the absence of a significant public interest. ”, it did not specify any exceptions in the EIRs (nor any exemptions under FOIA) as the basis for its refusal.

52. Likewise, we have noted, the Council’s further response on 15 December 2023 did not address any such exceptions (or exemptions), albeit it referred generically to legal advice being exempt from FOIA “ due to legal privilege ”.

53. Having regard to the factual background and the provisions of regulation 5(2) and regulation 14, we find that the Council has failed to either disclose the Requested Information or to issue a valid refusal notice as required by the EIRs.

54. We therefore agree with the Commissioner’s findings to that effect in the Decision Notice. Final conclusions

55. For all of the reasons we have given, we find that the Commissioner was correct to conclude, in the Decision Notice, that the Council breached regulation 5(2) by failing to provide the Requested Information and/or breached regulation 14 by failing to issue a valid refusal notice in respect of the Request.

56. We therefore dismiss the appeal.

57. As we are dismissing the appeal, it is now incumbent on the Council to take the steps specified in the Decision Notice, as we recorded at the beginning of this decision.