First-tier Tribunal
General Regulatory Chamber
Information Rights
Appeal Reference: EA/2020/0049
Decided without a hearing
On 12 January 2022
Before
JUDGE HAZEL OLIVER
ALISON LOWTON
ANNE CHAFER
Between
ANDREW LANCASTER
Appellant
and
INFORMATION COMMISSIONER
Respondent
DECISION
The appeal is upheld in part
SUBSTITUTE DECISION NOTICE
The Information Commissioner’s decision was not in accordance with the law in the following
respects:
1. Western Power Distribution was not entitled to rely on Regulation 12(4)(e) to withhold
internal communications within the scope of the appellant’s requests which took place
prior to July 2018.
2. Western Power Distribution was not entitled to rely on Regulations 12(5)(e) and 12(5)(f)
to withhold advice, plans, emails and any other communications with its contractors
within the scope of the appellant’s requests, except where this consists of information
about quotes, costs and invoices.
Western Power Distribution is to provide a fresh response to the appellant which does not rely
on these exceptions for these categories of information by 18 February 2022.
REASONS
Background to Appeal
1. This appeal is against a decision of the Information Commissioner (the “Commissioner”)
dated 7 January 2020 (FER0839491, the “Decision Notice). The appeal relates to the
application of the Environmental Information Regulations 2004 (“EIR”). It concerns information
about the proposed construction of a wall on the appellant’s land requested from Western
Power Distribution (“WPD”).
2. The parties opted for paper determination of the appeal. The Tribunal is satisfied that it
can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal
Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).
3. WPD is a power distributor. It owns and operates the electricity distribution network for the
Midlands, South West and Wales. It is not disputed that WPD is treated as a public authority
under EIR.
4. This issue arises from dealings between the appellant and WPD relating to work on and
next to his property. WPD own some land to the rear of the appellant’s property. This land
contained an electricity substation. In order to access this land and substation, WPD have a
right of way over the appellant’s property. This right of way runs along the border with one of
his neighbours. Work started to replace the sub-station in 2016. There was a dispute between
the appellant and WPD about alleged damage to his land, removal of material and operation
of heavy plant during this work.
5. In 2017 and 2018 there were discussions about WPD building two new retaining walls on
the appellant’s property. This was as part of discussions about settling their dispute. One wall
was to replace a dry-stone wall to the rear of the appellant’s property that had been removed
by WPD. The other wall was to be on the boundary between the appellant’s property and his
neighbour, along the right of way (the “boundary wall”). Plans were produced by independent
contractors engaged by WPD. The first wall was built by WPD. The boundary wall was not
built. In April 2018, WPD informed the appellant that they would be removing the sub-station.
This was removed, and WPD offered to sell the land to the appellant for a nominal price.
6. There were ongoing discussions with the appellant and his neighbour about the boundary
wall. In July 2018, the appellant’s neighbour withdrew consent for WPD to carry out any further
work on their land. There was further correspondence between the appellant and WPD about
construction of the boundary wall. WPD said that the Party Wall Act would apply due to the
depth of the foundations, and it was not possible to build the wall close enough to the
appellant’s property to avoid these provisions without expensive temporary works to protect the
property’s foundations. WPD said that for these reasons they would not be able to complete
the work as previously discussed. The boundary wall has not been built by WPD.
The requests
7. On 5 December 2019, the appellant wrote to WPD and requested the following information:
“The works to level the land at the side of my property and allow vehicular access were
something I started prior to the issues that have arisen between us in the past three years,
and are something that I intend to complete. I have approached a number of contractors
to build a retaining wall between mine and the neighbouring property and several have
provided quotations and have indicated that they see no reason why any such wall cannot
be constructed. They are understandably reluctant to commit to any works until clarification
is provided on the issues that prevented your contractors from being able to build it. The
only information I have been given is:
“Western Power has a number of very competent civil engineering contractors on its
framework and the position of Western Power’s engineers and the contractors is that
significant temporary works would be required to your property in order to protect it against
the risk of movement during the temporary works phase. Some of Western Power’s
contractors are not even prepared to take that risk.”
I have shown this advice to them and am told that it does not assist them in determining
what the issues that need to be overcome are. I am thus in the impossible position of not
being able to progress with the works because of the associated risks, nor can I continue
to suffer indefinite postponement if the obstacles are within my means to overcome.
I can see no legitimate reason why you would not be willing to furnish me with this
information. I therefore feel that I have no other option than to formally request that
Western Power Distribution release to me all the information that you hold in relation to me
and my property, and so please consider this a subject access request under the General
Data Protection Regulations. I expect this information to include the information that
relates to the risks on site which relate specifically to my property and so relate to me also.
Another issue that has recently come to my notice is that works would not be able to
proceed while WPD has cables on my land. Given that the sub-station has now been
removed in its entirety I would be grateful if you could clarify if any of the cables that remain
on my land are still connected to the supply network and are still live (this information is
vital in order that exploratory excavations can be completed safely.)”
8. WPD treated this as a subject access request under the Data Protection Act 2018, and
provided some information to the appellant on 7 January 2019.
9. On 10 January 2019, the appellant wrote to WPD and requested the following information:
“I own the property at [redacted], behind which, until recently, stood a local electricity sub-
station. Renewal of the apparatus became necessary and in order to access the site safely
with heavy plant WPD agreed to construct a retaining wall between my property and my
neighbours. WPD have since refused to construct this wall and have stated that the
reasons are both because of safety concerns on site relating to the ground conditions,
because of the proximity of the proposed structure to my property and because of the depth
of the foundations of my neighbours’ home.
I have repeatedly asked for details of these concerns in order that they can be taken into
consideration as I still plan to build a structure to satisfy my needs. As a consequence of
the repeated refusals I have contacted the Information Commissioner’s Office (ICO) and
have been advised that this information should be disclosed under the Environmental
Information Regulations 2004.
These are matters that relate to the development of land and to the state of human health
and safety, including the conditions of built structures. I would also like to be furnished with
the predicted costs of construction of each of the different types of design considered by
WPD and its contractors for the retaining wall between my property and that of my
neighbour in order to be sure that the prices I have been quoted for the works are
reasonable….
…. I therefore respectfully request that all information held by or on behalf of Western
Power Distribution and relating to the construction of any structure on my land be
disclosed.”
10. In summary, these two requests asked for the following which falls under EIR:
a. All information held by WPD in relation to the appellant’s property, including relating
to the risks on site.
b. Clarification of whether WPD cables remained on his property, were still connected,
and were live.
c. The predicted costs of construction of each of the different types of design
considered by WPD and its contractors for the boundary wall.
d. All information held by or on behalf of WPD and relating to the construction of any
structure on the appellant’s land
11. WPD responded on 19 February 2019 and provided some information within the scope of
the requests. WPD withheld other information under the following exceptions in EIR: 12(4)(e)
(internal communications), consisting of internal deliberations and decisions; 12(5)(b) (the
course of justice, based on legal advice privilege), consisting of emails and advice between
WPD and its solicitors in September and October 2018; 12(5)(e) (confidentiality of commercial
or industrial information) and 12(5)(f) (interests of the information provider), consisting of advice,
plans and emails between WPD and its contractors; and 13(1) (personal data), consisting of
correspondence with or relating to third parties. The appellant requested an internal review.
WPD responded on 18 April 2019 and upheld its original decision.
12. The appellant complained to the Commissioner on 26 April 2019. During the
Commissioner’s investigation, WPD confirmed that it did not hold any information about safety
concerns or risks from building the boundary wall. The Commissioner says that the appellant
accepted this position. We note that the appellant says that this request was satisfied in his
email to the Commissioner during the investigation at page D422 of the open bundle.
13. The Commissioner decided:
a. Regulation 12(5)(f) was engaged in relation to information to/from WPD’s contractors,
and the balance of public interest favours maintaining the exception. It was not
necessary to consider regulation 12(5)(e) separately.
b. Regulation 12(4)(e) was engaged in relation to internal deliberations and decisions
regarding proposals for the wall, including drafts of correspondence to the appellant,
and the balance of public interest favours maintaining the exception.
c. Regulation 12(5)(b) was engaged by legally privileged correspondence between
WPD and its solicitors, and the balance of public interest favours maintaining the
exception.
d. Regulation 13 was engaged by information that relates to and identifies third parties,
and disclosure is not necessary to meet the appellant’s interests in transparency.
e. In assessing the public interests in disclosure, the Commissioner took the view that
the information is of limited public interest as it relates to a specific dispute involving
the appellant and WPD.
The Appeal and Responses
14. The appellant appealed on 4 February 2020. His grounds of appeal are lengthy and
contain a considerable amount of background information. His specific points in relation to
each exception are considered in the discussion below. In summary, the appellant argues that
all of the exceptions were applied incorrectly by the Commissioner:
a. The decision incorrectly focussed on the fact he is the requester seeking information
in pursuance of a dispute, instead of being applicant and motive blind.
b. The public interest test in favour of disclosure has been incorrectly applied as there
is a suggestion of wrongdoing or dishonesty.
c. Regulation 13 was wrongly applied to withhold environmental information contained
in documents that also contain personal data.
d. Regulation 12(5)(f) was incorrectly applied as this relates to voluntary supply of
information by third parties, not information shared by contractors.
e. The Commissioner failed to consider information held under regulation 12(5)(e).
15. The Commissioner’s response maintains that the Decision Notice was correct. The
response makes brief points about each exception which are considered in the discussion
below.
16. WPD has not been joined as a party to the proceedings, but provided written submissions.
These submissions contain lengthy factual details in response to the background information
in the appellant’s grounds of appeal. WPD also makes some submissions about the application
of the exceptions and the public interest test, supported by an Appendix which reproduces
WPD’s answers to questions from the Commissioner during her investigation. These are
considered in the discussions below.
17. The appellant submitted a lengthy reply to each of the responses from the Commissioner
and WPD. Again, we consider relevant points in the discussion below.
Applicable law
13. The relevant provisions of the Environmental Information Regulations 2004 (“EIR”) are as
follows.
2(1) …“environmental information” has the same meaning as in Article 2(1) of the
Directive, namely 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;
……
5(1) …a public authority that holds environmental information shall make it available
on request.
……
5(3) To the extent that the information requested includes personal data of which the
applicant is the data subject, paragraph (1) shall not apply to those personal
data.
……
12(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose
environmental information requested if –
(a) an exception to disclosure applies under paragraphs (4) or (5); and
(b) in all the circumstances of the case, the public interest in maintaining the
exception outweighs the public interest in disclosing the information.
12(2) A public authority shall apply a presumption in favour of disclosure.
12(3) To the extent that the information requested includes personal data of which the
applicant is not the data subject, the personal data shall not be disclosed
otherwise than in accordance with regulation 13.
12(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose
information to the extent that—
……
(e) the request involves the disclosure of internal communications.
……
12(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose
information to the extent that its disclosure would adversely affect -
……
(b) the course of justice;
…..
(e) the confidentiality of commercial or industrial information where such
confidentiality is provided by law to protect a legitimate economic interest;
(f) the interests of the person who provided that information where that person-
(i) was not under, and could not have been put under, any legal obligation
to supply it to that or any other public authority;
(ii) did not supply it in circumstances such that that or any public authority
is entitled apart from these Regulations to disclose it; and
(iii) has not consented to its disclosure.
…….
13(1) To the extent that the information requested includes personal data of which the
applicant is not the data subject, a public authority must not disclose the
personal data if— (a) the first condition is satisfied…
……
13(2A) The first condition is that the disclosure of the information to a member of the
public otherwise than under these Regulations— (a) would contravene any of
the data protection principles…
14. Requests for environmental information are expressly excluded from the Freedom of
Information Act 2000 (“FOIA”) in section 39 and must be dealt with under EIR, and it is well
established that “environmental information” is to be given a broad meaning in accordance with
the purpose of the underlying Directive 2004/4/EC. We are satisfied that this request falls within
EIR.
15. Regulation 12(4)(e) (internal communications). This is a class-based exception, meaning
it is engaged automatically for information that consists of internal communications without the
need for to show that disclosure would cause harm. It is still subject to the public interest
balancing test. The concept of “internal communications” is broad, and covers information
intended to be communicated to others. The purpose of the exception is to preserve the public
authority’s private thinking space, which is particularly relevant when a matter is live.
16. Regulation 12(5)(b) (the course of justice). Legal professional privilege (“LPP”) protects
the confidentiality of legal communications. It has two parts – legal advice privilege, and
litigation privilege. Legal advice privilege concerns confidential communications between
lawyer and client. It applies to communications between a client and their legal adviser, acting
in a professional capacity, for the dominant purpose of seeking or giving legal advice or
assistance in a relevant legal context (Three Rivers District Council v Governor and
Company of the Bank of England (no 6) [2004] UKHL 48). Waiver of privilege occurs where
there is a loss of confidentiality in the privileged information, by making it available to the public
or a third party without restriction. This includes where part of the content of the document or
advice has been disclosed, as the beneficiary of the privilege cannot “cherry pick” parts of a
privileged document for disclosure and withhold others.
17. Unlike under the exemption for privileged material in FOIA, LPP is not specifically covered
by an exception under EIR. However, it is well established that disclosure of material which is
subject to LPP can be refused under Regulation 12(1)(b) EIR on the basis of an adverse effect
on the course of justice.
18. The application of LPP in relation to EIR cases and the adverse effect on the course of
justice was considered by the Upper Tribunal (“UT”) in DCLG v Information Commissioner
& WR [2012] UKUT 103 (AAC). The UT considered that the Tribunal “can and must take into
account the general effect which a direction to disclose in the particular case would be likely to
have in weakening the confidence of public authorities generally that communications with their
legal advisers will not be subject to disclosure”, as well as the “adverse effects on the course
of justice in the particular case, such as that it would be unfair to give the requester access to
the public authority’s legal advice, without the public authority having the corresponding benefit.”
(paragraphs 51 and 54). The exception is to be applied on a case-by-case basis, and is only
engaged if the course of justice “would” be adversely affected, meaning more probable than
not (paragraph 54). The UT decision in GW v Information Commissioner and others [2014]
UKUT 130 (AAC) confirms that the mere fact that LPP attached to advice did not automatically
mean that the disclosure of that advice would adversely affect the course of justice. It is for the
public authority to identify and establish any adverse effect on the course of justice that it relied
on, in its particular circumstances.
19. This exception is subject to the public interest test, meaning if information falls within this
exception, it can be withheld if the public interest in maintaining the exception outweighs the
public interest in disclosing the information. It has been accepted in numerous cases that there
is a strong public interest built into legal privilege, based on the interest in public bodies being
able to receive frank legal advice in order to assist them to make appropriate decisions. This
was confirmed by the High Court in DBERR v O’Brien and IC [2009] EWHC 164 (QB) in
relation to the equivalent exemption in FOIA – “The in-built public interest in withholding
information to which legal professional privilege applies is acknowledged to command
significant weight. Accordingly, the proper approach for the Tribunal was to acknowledge and
give effect to the significant weight to be afforded to the exemption in any event; ascertain
whether there were particular or further factors in the instant case which pointed to non-
disclosure and then consider whether the features supporting disclosure (including the
underlying public interests which favoured disclosure) were of equal weight at the very least.”
(Wyn Williams J at paragraph 53).
20. Regulation 12(5)(e) (commercial confidentiality). This is not limited to information
provided by a third party. The information in question must be commercial or industrial. The
information must be subject to confidentiality provided by law. An obligation of confidence can
be implied, and the three-stage test in Coco v A N Clark (Engineers) Ltd [1969] RPC 41
applies: (1) the information must have the "necessary quality of confidence", in that it is not
publicly accessible and is more than trivial; (2) the information must have been imparted in
circumstances that implied an obligation of confidence, whether this is explicitly or implicitly;
and (3) disclosure of the information must be unauthorised. The confidentiality must protect a
legitimate economic interest, which would, on the balance of probabilities, be harmed by
disclosure. Finally, it must be shown that the disclosure of the information would adversely
affect the confidentiality.
21. Regulation 12(5)(f) (interests of the information provider). This exception only applies
where the person providing the information was not under, and could not have been put under,
any legal obligation to supply it – meaning the information must have been provided purely
voluntarily.
22. Regulation 13(1) (personal data). Section 3(2) of the Data Protection Act 2018 (“DPA”)
defines “personal data” as “any information relating to an identified or identifiable living
individual”. The “processing” of such information includes “disclosure by transmission,
dissemination or otherwise making available” (s.3(4)(d) DPA), and so includes disclosure under
EIR.
23. The data protection principles are those set out in Article 5(1) of the General Data
Protection Regulation (“GDPR”), and section 34(1) DPA. The first data protection principle
under Article 5(1)(a) General Data Protection Regulation (GDPR) is that personal data shall
be: “processed lawfully, fairly and in a transparent manner in relation to the data subject”. To
be lawful, the processing must meet one of the conditions for lawful processing listed in Article
6(1) GDPR. These include where “the data subject has given consent to the processing of his
or her personal data for one or more specific purposes” (Article 6(1)(a)). It also includes where
“processing is necessary for the purposes of the legitimate interests pursued by the controller
or by a third party, except where such interests are overridden by the interests or fundamental
rights and freedoms of the data subject which require protection of personal data, in particular
where the data subject is a child.” (Article 6(1)(f)).
24. This involves consideration of three questions (as set out by Lady Hale DP in South
Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55):
(i) Is the data controller or third party or parties to whom the data are disclosed pursuing
a legitimate interest or interests?
(ii) Is the processing involved necessary for the purposes of those interests?
(iii) Is the processing unwarranted in this case by reason of prejudice to the rights and
freedoms or legitimate interests of the data subject?
The wording of question (iii) is taken from the Data Protection Act 1998, which is now replaced
by the DPA and GDPR. This should now reflect the words used in the GDPR – whether such
interests are overridden by the interests or fundamental rights and freedoms of the data subject
which require protection of personal data.
Issues and evidence
25. The issues are:
a. Is regulation 12(4)(e) engaged by the withheld information and, if so, does the public
interest in maintaining the exception outweigh the public interest in disclosing the
information?
b. Is regulation 12(5)(b) engaged by the withheld information and, if so, does the public
interest in maintaining the exception outweigh the public interest in disclosing the
information?
c. Is regulation 12(5)(e) engaged by the withheld information and, if so, does the public
interest in maintaining the exception outweigh the public interest in disclosing the
information?
d. Is regulation 12(5)(f) engaged by the withheld information and, if so, does the public
interest in maintaining the exception outweigh the public interest in disclosing the
information?
e. Is Regulation 13 engaged in relation to personal data of third parties and, if so:
i. Is the data controller or third party or parties to whom the data are disclosed
pursuing a legitimate interest or interests?
ii. Is the processing involved necessary for the purposes of those interests?
iii. Are such interests are overridden by the interests or fundamental rights and
freedoms of the data subject which require protection of personal data?
26. By way of evidence and submissions we had the following, all of which we have taken into
account in making our decision:
a. An agreed bundle of open documents, including the appeal, response from the
Commissioner and appellant’s reply.
b. A closed bundle of documents containing the withheld information.
c. Written submissions from WPD and the appellant’s reply (contained in the open
bundle)
d. A witness statement from the appellant (contained in the open bundle).
e. Written final submissions from the appellant.
Discussion and Conclusions
27. We have assessed the exceptions relied on by WPD by considering the representations
of the parties, the submissions from WPD, and the content of the closed bundle which contains
the withheld information.
28. Regulation 12(4)(e) (internal communications). All internal communications in the
withheld information automatically engage this exception. However, the information must still
be disclosed unless the public interest in maintaining the exception outweighs the public
interest in disclosure.
29. We start with the public interest in disclosure. The appellant says that there is a strong
public interest in disclosure, based on allegations of wrongdoing against WPD. He says that
WPD have acted contrary to statute, with disregard for third party property owners. He says
this is of public interest because the vast majority of the supply network exists under, on or over
land owned by third parties. He complains about the way the work was carried out on his
property and alleges damage was caused by WPD. He also says that WPD entered into an
agreement to build the boundary wall with him and a neighbour, but then acted unsafely in
removing the sub-station while they had access to his land and provided incorrect reasons for
going back on the agreement to build the wall. The appellant has also provided a witness
statement, which provides evidence about a telephone conversation between the appellant and
an employee of the contractor engaged by WPD. The employee is recorded as saying there
were not any safety concerns with building the boundary wall, and this contractor never had a
contract to build the wall. The appellant says this shows WPD had no intention of completing
the boundary wall. He alleges that they used the agreement to build the wall as a reason to
enter his property and complete their own works, and then attempted to deceive him and his
neighbour as to the reasons for not building the boundary wall by claiming their contractors had
raised safety concerns of such magnitude that the contractors were unwilling to accept the risk.
30. WPD’s position is that this is a private dispute about a small piece of land, which is of no
wider environmental impact or interest. The Commissioner also took this view, having
considered the withheld information. We have considered the appellant’s representations and
witness statement on this point, alongside the withheld information itself. There is clearly a
dispute between WPD and the appellant about the work to remove the substation, access to
his property, and the building of the boundary wall. This is primarily a private interest, involving
a small piece of private land. We note the appellant’s point that WPD has to deal regularly with
third party property owners. If there is evidence of potential wrongdoing or dishonesty in the
way WPD deals with third parties, this would be of public interest. However, having viewed the
withheld information, there is nothing in closed bundle to indicate actual wrongdoing,
dishonesty or other matters of wider public concern. We do not find that the allegations in the
appellant’s witness statement about dishonesty by WPD are correct.
31. We therefore find that the public interest in disclosure of the information is limited. There
is a general interest in transparency and openness in relation to decision-making by public
authorities. We also accept that there is some public interest in how WPD deals with members
of the public when working on their land. However, the detail of the dispute between the
appellant and WPD is essentially a private matter between, the appellant, WPD and his
neighbours, and is not a matter of great public interest in the absence of evidence of
wrongdoing. The appellant has made the point that the EIR is applicant and motive blind. This
is correct, in that disclosure of information should generally not be refused based on the identity
of the requester or the reasons behind the request. But, the reasons for requesting disclosure
may be relevant to the public interest test balancing, as in this case. It is necessary to show
that there is a public rather than a private interest in disclosure.
32. Turning to the public interest in maintaining the exception, WPD says the internal
communications contain deliberation over options and requests from the appellant. WPD says
disclosure would have a chilling effect on openness and their ability to deliberate and make
decisions such as this. The appellant says WPD’s deliberations are concluded and the issue
is no longer live, as it came to an end in October 2018 when WPD said they would no longer
build the boundary wall. He says that arguments about safe space for deliberations and the
chilling effect should have little weight.
33. We have considered these arguments in the context of the withheld information itself.
WPD has relied on this as a blanket exception for all internal communications. We do not agree
with the appellant’s position that this matter in its entirety is no longer live. As noted by the
Commissioner, the appellant himself says that he has lodged a complaint with WPD after this
date (paragraph 214 appeal grounds). The requests for information were in December 2018
and January 2019, and the final review decision was provided by WPD in April 2019. There
was ongoing correspondence between the appellant, WPD and its solicitors about work on the
appellant’s property and proposals to settle their dispute until December 2018. WPD takes the
position that there is still a live dispute, which has the potential to lead to litigation. We accept
that the dispute about what had happened with the appellant’s property and the refusal to build
the boundary wall was still live at the time of the requests and review decision. We accept that
it would significantly undermine the safe space for internal deliberations on these matters if
they were to be disclosed to both the appellant and the world at large during the dispute.
Individuals within WPD would be inhibited about holding honest internal discussions. This
would not be in the public interest, and this is sufficient to outweigh the limited public interest
in disclosure.
34. However, the position is different with earlier internal communications which do not relate
to the current dispute. Some of the withheld information is internal communications about the
actual work on the appellant’s property and the building of the boundary wall, as opposed to
communications about the ongoing dispute. The work itself was not live at the time of the
requests. The need for a safe space is reduced when a matter is no longer live. WPD have
referred generally to a chilling effect on openness and deliberations for “decisions like this”.
We do not accept that this general argument about a chilling effect has significant weight. WPD
has not explained why disclosure of old deliberations on one matter would inhibit future
deliberations by professional staff about a different matter. The public interest in maintaining
the exception for these communications is limited. The public interest in disclosure is similarly
limited. Applying the presumption of disclosure under the EIR, this means that WPD cannot
rely on this exception for internal communications about historic work on the appellant’s
property.
35. Consent from the neighbours to build the boundary wall was withdrawn in July 2018. The
appellant sent a written complaint to WPD on 27 July 2018, which referenced recourse through
the courts. The dispute about why the wall had not been built, which was ongoing at the time
of the requests, was triggered in July 2018. We therefore find that this exception can be applied
to internal communications from July 2018 onwards. Prior internal communications are about
historic matters and this exception does not apply.
36. Regulation 12(5)(b) (the course of justice). WPD relies on legal advice privilege in relation
to correspondence with its solicitors. We are satisfied that this material is covered by legal
advice privilege – it is communications between a client and their legal adviser, acting in a
professional capacity, for the dominant purpose of seeking or giving legal advice or assistance
in relation to the situation involving the appellant’s property. As stated by WPD, the solicitors
are providing advice on the Party Wall Act and other property law issues.
37. WPD says that they have disclosed the advice confidentially to another law firm, but not to
any other third parties. The appellant has argued in his final submissions that that legal
privilege has been waived by WPD, as WPD sent him letters on 31 July and 16 August 2018
which refer to legal advice. This does not amount to a waiver of privilege. Simply revealing
the fact advice has been provided does not waive privilege in that advice. Neither does
confirmation that a report or approach is based on legal advice. Waiver requires so much
information about privileged advice to have been provided that it loses its confidentiality. We
have taken account of guidance provided in Brennan v Sunderland City Council [2009] ICR
479 (EAT) – legal advice privilege is an extremely important protection and waiver is not easily
established, and something more than the effect of the advice must be disclosed before any
question of waiver can arise (paragraph 66). Applying these principles, we find no waiver in
this case.
38. The next question is whether disclosure would have an adverse effect on the course of
justice. WPD says that the correspondence relates to a potential dispute, and disclosure would
damage its position in any future legal proceedings. WPD says that the ongoing dispute is
reasonably capable of proceedings to litigation. They also say that disclosure would undermine
their lawyers’ capacity to give full and frank advice, and potentially discourage WPD from
seeking legal advice. These are both matters than can be taken into account in accordance
with DCLG v Information Commissioner.
39. The appellant has argued that the matter was not “live” at the time of his requests and the
review decision, as WPD had already told him they were not going to build the wall. We do not
agree. The requests for information were in December 2018 and January 2019, and the final
review decision was provided by WPD in April 2019. There was ongoing correspondence
between the appellant, WPD and its solicitors about work on the appellant’s property and
proposals to settle their dispute until December 2018. At the time of the requests and review,
the dispute had not been resolved and there may well have been litigation. We note that the
appellant referred to seeking recourse through the courts in his original complaint letter to WPD
of 27 July 2018. We therefore find that disclosure, at that time, would have had an adverse
effect on the course of justice, by prejudicing WPD’s position in the ongoing dispute and
potential litigation.
40. The next issue is whether the public interest in maintaining the exception outweighs the
public interest in disclosing the information. It would clearly not be in the public interest for
WPD to be disadvantaged in any ongoing dispute with the appellant or future litigation. We
also note the guidance in DBERR v O’Brien and IC that the in-built public interest in
withholding information to which legal professional privilege applies is acknowledged to
command significant weight, and the underlying public interests which favoured disclosure
must be of equal weight at the very least. There is a general public interest in transparency in
relation to how public authorities make decisions. The appellant argues that there is public
interest in disclosure on the basis of potential wrongdoing by WPD. However, as discussed
above, we do not find that this argument has any significant weight. On balance, the public
interest in maintaining the exception has greater weight.
41. We therefore find that WPD was entitled to rely on this exception to withhold
correspondence with its solicitors. To be clear, this includes drafts of letters to the appellant,
but not the final version of letters to the appellant which he has already received and are
personal data under the DPA.
42. The appellant says that WPD have stated the withheld information relates only to
communications between it and Geldards LLP from September to October 2018, and any
communications outside of those dates or with other solicitors should be disclosed. The closed
bundle does contain correspondence with solicitors outside these dates – in July 2018, August
2018, and December 2018. It is clear from the spreadsheet provided to the Commissioner
(page D398 onwards in the open bundle) that WPD is relying on this exception for these
documents as well, and we are satisfied that they fall within the same analysis. The July and
August correspondence relates to the same issues of dispute, and the December
correspondence relates to the appellant’s data subject access and EIR requests, which remain
an issue of dispute in these proceedings. The same exception applies and this information can
be withheld on that basis.
43. Regulation 12(5)(e) (commercial confidentiality). WPD has withheld a set of documents
which consist of communications and related documents with the independent contractors who
were engaged to carry out work on the appellant’s property. The majority of the withheld
information falls into this category.
44. We are satisfied that this information is commercial in nature – it consists of plans,
discussions and other communications about proposed work, which the contractors were
engaged to carry out under a commercial contract. We also find that the information is
confidential, applying the relevant tests. The information is not publicly accessible, as it relates
to a private commercial contract, and is more than trivial. The information was imparted in
circumstances that implied an obligation of confidence, again because it was in the context of
a private commercial contract. As far as we are aware, the contractors involved have not given
consent to disclosure, meaning disclosure of the information would be unauthorised.
45. The next part of the test is that the confidentiality must protect a legitimate economic
interest, which would, on the balance of probabilities, be harmed by disclosure. WPD says that
the information contains details about the contractors’ expertise and knowhow, and also pricing.
46. In relation to expertise and knowhow, WPD says that release of the information would lead
to loss of revenue for the contractors, as it would be disclosing information about work that the
contractors were to be paid for under a private contractual relationship. We do not agree.
The work prepared and carried out by the contractors involved plans for a small and very
specific piece of work – building a wall on a particular piece of residential land. It seems very
unlikely that this work would be replicated. We do not agree that the plans and other
discussions relating to the work involved expertise or knowhow that would be used by others
elsewhere and deprive the contractors of future paid work. It is for WPD to show that the
exception is engaged, and they have not done so in relation to plans, discussions and other
communications about the work on the appellant’s property. We find that disclosure of these
items would not, on the balance of probabilities, harm the contractors’ legitimate economic
interests.
47. In relation to quotes, costings and invoices relating to the work, we take a different view.
We accept that disclosure of this information would, on the balance of probabilities, harm the
contractors’ commercial bargaining position by revealing the costs quoted for this type and size
of project. The contractors have a legitimate economic interest that quotes and costings will
not be shared publicly. Although the detail of this building project is unlikely to be replicated
elsewhere, competitors could use knowledge about the contractors’ pricing to out-compete
them in future projects. The final part of the test is that the disclosure of this information
would adversely affect the confidentiality. We find that it would - the confidentiality would be
adversely affected by a public disclosure that would harm the contractors’ economic interests.
48. The next issue is whether the public interest in maintaining the exception outweighs the
public interest in disclosing the information on quotes, costings and invoices. We find that it
does. Disclosure of information that damages the commercial bargaining position of
contractors who engage with public authorities is not in the public interest. This will deter
contractors from providing the best price to WPD or other public authorities, or deter them from
engaging at all because of the risk that confidential quotes and discussions about pricing will
be disclosed. It will undermine the ability of public authorities to get value for money through
confidential tendering exercises. This is clearly not in the public interest, as it would prevent
public authorities from saving public money on building projects and working with the best
contractors.
49. As explained above, the public interest in disclosure of the requested information is limited.
The appellant argues that the work involved considerable amounts of public money. We agree
that there is a general public interest in transparency of costs spent by public authorities on
building work. However, this does not involve significant sums of money, and we note that the
work on the boundary wall was not actually carried out. In the circumstances, the public interest
in maintaining commercial confidentiality outweighs the public interest in disclosure.
50. We therefore find that all information relating to quotes, costings and invoices from any
contractor can be withheld, but the exception has not been applied correctly to the rest of the
withheld information.
51. Regulation 12(5)(f) (interests of the information provider). The appellant says that this
exception is about provision of voluntary information to third parties, and is not intended to
cover information provided to and from paid contractors. He says that information is not
provided “voluntarily” if it is provided under a commercial arrangement. There is limited legal
authority on this exception. We agree that it is not clear the exception is intended to apply to
information provided to a public authority by a paid contractor. The Commissioner took the
view that it did. However, we note that none of the examples give in the Commissioner’s
guidance on this exception refer to information provided during a commercial relationship (see
paragraphs 12 to 14). The underlying purpose of the exception is to ensure that individuals or
organisations can share environmental information voluntarily with public authorities, without
being damaged by disclosure of that information. It is not clear that this is intended to cover
information provided by a contractor during paid-for building work, particularly once a contract
is in place.
52. Even if this exception does apply in these circumstances, we find that it would produce the
same outcome as Regulation 12(5)(e). Disclosure of quotes, costings and invoices would
adversely affect the interests of the contractors who supplied this information, and the public
interest in maintaining the exception outweighs the public interest in disclosure for the same
reasons as explained in paragraphs 48 and 49 above. Disclosure of the other material that has
been withheld under this exception would not adversely affect the contractors’ interests.
53. Regulation 13(1) (personal data). This relates to correspondence with or about third
parties. Having reviewed the withheld information, we are satisfied that there are a number of
items which fall within this category, in particular correspondence and other documents
referring to the appellant’s neighbours from which individuals can be identified. These
documents are personal data of those third parties. The appellant has argued that names and
addresses could be redacted and the remainder of the documents disclosed. We do not agree.
The nature and context of the documents means that the third parties could be identified even
if names or addresses were removed.
54. This means that the information that consists of personal data can only be disclosed if that
would be fair and lawful processing of the data. The processing condition that is most relevant
in this case is Article 6(1)(a). The relevant questions are as follows:
a. Is the data controller or third party or parties to whom the data are disclosed
pursuing a legitimate interest or interests? We accept that the appellant has a
legitimate interest in obtaining information about matters affecting his property,
including where that involves his neighbours.
b. Is the processing involved necessary for the purposes of those interests? The
issue is whether disclosure is reasonably necessary for those purposes. WPD says
that it is not, because the appellant could use other legal mechanisms for obtaining
disclosure of documents. We do not agree, as it is unclear whether the appellant
would be able to obtain all of this information in another way. It may be that third
party information would need to be disclosed as part of any legal proceedings, but
the appellant has an interest in obtaining information about his property without
needing to bring a legal claim. We find that disclosure is reasonably necessary for
the purposes of the appellant obtaining information about matters affecting his
property.
c. Are such interests are overridden by the interests or fundamental rights and
freedoms of the data subject which require protection of personal data? We
find that they are. The information relates to the data subjects’ private life, including
in particular their property and relationship with both WPD and the appellant. The
data subjects would have a reasonable expectation that this information would not
be disclosed to the world at large in response to an EIR request. We note that there
is a potential dispute between the appellant and his neighbours. Disclosure of this
personal data under EIR would cause the data subjects distress and inconvenience,
and potentially affect any relationship or dispute they have with the appellant. These
considerations override the appellant’s interests in obtaining the personal data. They
also override any limited wider public interest in the information.
55. We find that WPD was entitled to reply on this exception to withhold correspondence with
or about third parties, in particular that relating to the appellant’s neighbours.
56. These findings mean that we disagree with part of the Commissioner’s decision. WPD
was not entitled to rely on Regulation 12(4)(e) (internal communications) 12(5)(e)
(confidentiality of commercial or industrial information) and 12(5)(f) (interests of the information
provider) in relation to some of the withheld information. WPD were entitled to rely on these
and other exemptions in relation to the remainder of the withheld information. WPD is to provide
a fresh response to the appellant which does not rely on these exceptions for certain types of
information, as set out in the Substitute Decision Notice.
Other matters
57. The appellant has raised the adequacy of searches and whether more information is held
in his final submissions. The appellant appears to be saying that information containing his
personal data (which he has received under the DPA) should also have been disclosed under
EIR. This is a misunderstanding of the law. Under Regulation 5(3), the EIR does not apply to
information which consists of the appellant’s personal data. We agree with the Commissioner
that the appellant’s name and address cannot simply be redacted in order for this information
to be disclosed under EIR, as the information could still identify him. Disclosure under EIR is
disclosure to the world at large, and this is why Regulation 5(3) applies as an absolute
exception to protect personal data from disclosure. If the appellant is saying that searches
were generally inadequate and further information is held which is not personal data, this was
not an issue raised in the Commissioner’s decision (apart from the record at paragraph 8 that
the appellant was content that information was not held about risks or concerns on site) or
detailed in the appellant’s grounds of appeal. We have limited this appeal decision to matters
dealt with in the Commissioner’s decision.
58. The appellant also says in his appeal that the Commissioner applied too narrow a definition
of environmental information, by limiting it to the safety of built structures. Having seen the
withheld information, we do not find that the response to the requests was limited in this way.
59. The Tribunal was concerned to see that unredacted information about third parties was
included in the open bundle, including about the same third parties whose personal data is
being withheld under Regulation 13. The open bundle has so far only been considered by the
parties and the tribunal, but will need to be redacted appropriately if it is released to the public
for any reason.
60. Our decision may require WPD to disclosure further information under EIR. In doing so,
they should check that no other exceptions apply, particularly in relation to third party personal
data. We note that the closed bundle contained a number of documents where more than one
exception could apply.
61. We uphold the appeal in part and issue the Substitute Decision Notice set out at the start
of this decision.
Signed: Hazel Oliver
Judge of the First-tier Tribunal
Date: 19 January 2022
Promulgated: 20 January 2022