In March of last year, I blogged about a first-tier tribunal decision which looked at the question of whether a local authority was obliged under the EIR to allow an applicant to inspect property search information free of charge – see my post on the East Riding v IC case here (see also my post on the High Court judgment in Onesearch here). This is a question which has recently been revisited by the Upper Tribunal in Kirklees Council v IC & Pali Ltd. In Kirklees, a property search company (Pali) had written to Kirklees Council asking that it be allowed to inspect those property search records held by the council which would enable it (Pali) to answer particular questions contained in the relevant property search form issued by the Law Society (the CON29R form). Pali made clear in its request that it expected to be allowed to inspect the records free of charge in accordance with r. 8(2) EIR. The council refused the request and sought to charge Pali a fee for provision of the relevant information under the Local Authorities (Charges for Property Searches) Regulations 2008. The Commissioner concluded that the council ought to have permitted the applicant to inspect the records free of charge under the EIR. The council appealed against that decision. The case was referred directly to the Upper Tribunal.

The council’s principal argument on appeal was that Pali’s request was not a valid information request at all because, as the council put it, the request was a ‘purposive’ request rather than a ‘descriptive’ request – i.e. it was not a valid request because it was delineated by reference to a particular purpose, namely enabling Pali to answer the questions in the CON29R form, rather than one which sought simply to describe the particular information in question. The Upper Tribunal rejected this argument. It held that the terms ‘purposive’ and ‘descriptive’ requests were ‘unhelpful and misleading’ in this context and that, more generally, the distinction the council was seeking to draw would risk imposing technical hurdles on applicants which ‘could risk unduly narrowing access to environmental information’. The Tribunal also rejected a secondary case advanced by the council to the effect that r. 8 operated so as to enable it to charge for locating and retrieving relevant information prior to allowing inspection of that information. It held that r. 8(2) precluded an authority from charging for allowing applicants to inspect information in situ and that a charge was only permissible if copy documents were provided to the applicant or the information was accessed other than by means of in situ inspection. The decision should shortly be available on the Tribunal website.

In Chichester District Council v Friel, Case No. EA/2010/0153, Decision on 16 March 2011, the First-Tier Tribunal was concerned with a request for information with regard to a planning application made by the Council to itself.  The Tribunal rejected arguments by the Council that EIR 12(5)(d), confidentiality, and 12(5)(e), commercial or industrial information, applied.  EIR 12(4)(e), however, internal communication, did apply to a valuation.  The issue therefore was as to the application of the Public Interest Test.  The Tribunal regarded the public interest in favour of disclosure as being enhanced by what it called (para 39) a “deficit of democratic engagement”.  The Tribunal observed (para 29) that whereas, prior to the major changes to local government in 2000, ward members were involved in a variety of decision making Committees, it was commonly the case now that almost all decisions are taken by a very small group of Councillors in Cabinet, and that the ability of Councillors not in Cabinet to scrutinise and thereby render accountable decisions taken which are not in the public domain relies upon either matters going to full Council or the Scrutiny & Overview Committee exercising their ‘call in’ powers. In the instant appeal the decision to sell the land for development had gone to Council in 2003. It had not since been before any Council or Committee meeting. Thus, as at the material time in mid-2009, there had been no formal Councillor review or input to this proposal for almost 6 years. Throughout this period, the issues as to sale, nature of development and planning permission had been dealt with at officer level.  Those opposed to the development were consistently and correctly told that financial viability was not a valid planning consideration and as such, they were told that their concerns in this regard, could not be taken into account.   This left the opponents at a loss as to when and how they could access information on this issue and when and how their concerns could be addressed and their views made known.

As to public interest factors against disclosure, the Council urged that, if disclosure was made, the Council would need to change its processes to its detriment. It was said that the Council would need to take decisions without the benefit of a valuation and/or the valuation would need to be in such vague terms as to be essentially worthless. This would inevitably, it was said, mean that the Council’s decisions would be less effective potentially to the financial detriment of local taxpayers.

As regards the possibility that the Council would change its practices as a result of disclosure, thereby impeding internal communications, the Tribunal (para 40) noted however that there was no evidence of this, merely speculation and assertion on the part of the Council. That this would follow, ignored the developments in local government since the introduction of FOIA and the EIR. The Tribunal expected authorities to understand by now that disclosure in an individual case was specific to the circumstances of that case. In that sense, disclosure under FOIA and EIR is never routine. In any event, any changes to procedure would still need to provide for elected members being properly informed of relevant matters in the decision making process. The Tribunal questioned whether the Council’s reluctance to make disclosure in this case was a product of an old orthodoxy that valuations will never, in any circumstances, be made public.

In all the circumstances, the Tribunal did not find itself able to conclude that the disclosure would be likely (as distinct from possible) to have a negative impact. Given the passage of time since the valuation and the capacity for variable factors to reduce its reliability, the Tribunal had not been satisfied by the Council’s argument that there was an appreciable risk to the receipt of best value.  Moreover, the Tribunal noted that certain of the information contained within the valuation document was already in the public domain.  In all the circumstances, the Tribunal found that the public interest in maintaining the exception did not outweigh the public interest in disclosure.

James Goudie QC

On 10 March 2011 Advocate General Kokott gave her Opinion in Case C-71/10, OFCOM v Information Commissioner, a reference from the UK Supreme Court.  According to the Environmental Information Directive the right of access of individuals to environmental information can be restricted if disclosure would undermine particular interests deserving of protection provided that in the particular case the public interest served by disclosure does not outweigh the public interest served by refusal.  The question is whether, when deciding upon disclosure of environmental information, individual adversely affected interests which, when taken individually, would not be sufficient to outweigh the public interest served by disclosure can be cumulated and possibly together justify the confidential treatment of information.  The Advocate General answered the question in the affirmative.  She said (para 41): “…  the breakdown of interests meriting protection into different exceptions does not preclude their cumulation. As convincingly argued by the United Kingdom, these exceptions are not always clearly distinguishable from each other. Indeed, the interests meriting protection sometimes clearly overlap.”

The Advocate General accepted that a cumulation of interests cannot create additional exceptions to the right to information, and said that the main issue is whether additional exceptions are created by a cumulation of recognized adversely affected confidential interests during the balancing exercise.  She continued (from para 53): “Cumulation can unquestionably bring about an additional restriction of access to environmental information if several interests together justify a refusal of disclosure even though, when taken in isolation, they would be outweighed by the public interest served by disclosure. It would nevertheless still always be a question of restriction of access based on recognised interests.  I agree with the United Kingdom in considering that this additional restriction correctly applies the principle of proportionality. … if the recognised interests militating against disclosure were together to clearly outweigh the public interest served by disclosure, the disadvantages caused by the disclosure of environmental information would no longer be proportionate to the aims pursued. … The Information Commissioner does indeed fear that the balancing of cumulative interests would be difficult to achieve in practice; however, these difficulties lie less in cumulation itself than in the nature of the balancing exercise between the interests served by disclosure and the interests served by the withholding of information. These interests are generally only comparable with difficulty, so that it is also difficult to weigh them against each other. This balancing exercise is made easier, however, if one applies the requirement of a restrictive interpretation of exceptions during the balancing exercise such that, in the event of doubt, the issue is decided in favour of transparency. … Consequently, the answer to the reference for a preliminary ruling should be that where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2) of the Environmental Information Directive, but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.”

James Goudie QC