Kentsel Yenileme Bilgilerinin Ticari Gizliliği

Appeal Number: EA/2021/0339

First-Tier Tribunal
(General Regulatory Chamber)
Information Rights

Heard: on Cloud Video Platform on 27th May 2022.
Decision given on: 17 June 2022

Panel: Brian Kennedy QC, Emma Yates and Marion Saunders.

Between:
Tony Mason
Appellant:
And

The Information Commissioner
First Respondent:
and

London Borough of Barnet
Second Respondent:

Representation:

For the Appellant: Tony Mason as a Litigant in person.

For the Respondent: Richard Bailey, Solicitor.

Decision: The Appeal is dismissed.

REASONS

Introduction:

[1] This decision relates to an appeal brought under section 57 of the Freedom of
Information Act 2000 (“the FOIA”). The appeal is against the decision of the
Information Commissioner (“the Commissioner”) contained in a Decision Notice
(“DN”) dated 05 November 2021 (reference IC-88621-K3C1), which is a matter of
public record.

Factual Background to this Appeal:

[2] Full details of the background to this appeal, the complainant’s request for
information and the Commissioner’s decision are set out in the DN. The appeal
concerns a request for information relating to area regeneration proposals being
considered by London Borough of Barnet (“LBB”). In response, the Commissioner
held that the LLB correctly relied on regulations 13 and 12(5)(e) of the EIR 2004 to
withhold some of the requested information from the complainant.

[3] The Commissioner maintains the position as set out in her DN; namely that the
LLB correctly relied on regulations 13 and 12(5)(e) of the EIR 2004 to withhold
some of the requested information from the complainant. The Appellant now
appeals against the DN. The Commissioner opposes the appeal and invites the
Tribunal to uphold the DN.

History and Chronology:

[4] On the 9 December 2020 the Appellant wrote to the LBB and made the following
request:

Request A
““The original (signed off) Public Interest Test (PIT) document that supports the
Schedule 12 A exemption decision related to Item 17 of the 8th of Dec P&RC
Meeting”.

Request B
“The full ‘Outline Business Case’ (“OBC”) i.e. information that LBB claim is as
exempt under Item 17 of the 8th of Dec P&RC Meeting”.

[5] In response, LBB denied holding the information requested in request A. In respect
of request B, LBB disclosed some information within the scope of request (i.e. a
redacted version of the OBC), refusing to disclose the remainder (‘the withheld
information’), relying upon the exceptions under regulations 12(5)(e) and 12(5)(f)
and 13 EIR.

[6] On 31 March 2021, the Appellant complained to the Commissioner about:-

“i) LBB’s handling of his request in respect of request B regarding its reliance on
regulations 12(5)(e) and (f) (the Appellant stating that he accepted LBB’s response
concerning request A); and
ii) LBB’s reliance on regulation 13 only as it related to an author of the report and /
or where it relates to senior personnel of the public authority.”

[7] Legal Framework:

A person requesting environmental information from a public authority has a right
to have that information communicated to him if the public authority holds it:
Regulation 5(1) EIR.

The requestor’s right under Regulation 5(1) EIR is subject to certain exceptions,
outlined in Regulation 12 EIR which provides (so far as is relevant) as follows:-

(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.

(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
-

...

(e) the confidentiality of commercial or industrial information where such
confidentiality is provided by law to protect a legitimate economic interest;

(2) A public authority shall apply a presumption in favour of disclosure. .......

The exception under regulation 12(5)(e) EIR reflects the wording in Article 4.4 (d)
of the Aarhus Convention which provides that:-

“A request for environmental information may be refused if the disclosure
would adversely affect:

...

(d)The confidentiality of commercial and industrial information where such
confidentiality is protected by law in order to protect a legitimate economic
interest.”

Grounds for refusing to disclose environmental information under the EIR should
be interpreted in a restrictive way – Vesco v Information Commissioner and
GLD [2019] UKUT 247 (AAC).

Regulation 13 EIR provides (so far as is relevant to this appeal):-

“(1) To the extent that the information requested includes personal data of
which the applicant is not the data subject, a public authority must no
disclose the personal data if –

(a) The first condition is satisfied
...

(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
...

The first data protection principle under Article 5(1)(a) GDPR is that personal data
shall be:

“processed lawfully, fairly and in a transparent manner in relation to the data
subject”.

The information can therefore only be disclosed if to do so would be lawful (i.e.
would meet one of the conditions of lawful processing listed in Article 6(1)
UKGDPR), fair and transparent.

Article 6(1)(f) UKGDPR provides:-

“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...”

The case law on Article 6(1)(f)’s predecessor established that it required three
questions to be answered, which are still appropriate if reworded as follows:-

i) Is the data controller or a third party pursuing a legitimate interest
or interests?

ii) Is the processing involved necessary for the purposes of those
interests?

iii) Are the above interests overridden by the interests or
fundamental rights and freedoms of the data subject?

There is an inherent tension between the objective of freedom of information and
the objective of protecting personal data. There is no presumption that openness
and transparency of the activities of public authorities should take primacy over

personal privacy: See Haslam v IC & Bolton Council [2016] UKUT 139 (AAC) at
[29]. The House of Lords has made clear, by reference to the equivalent Scottish
regime that “there is no presumption in favour of the release of personal data under
the general obligation of FOIA”: Common Services Agency v Scottish Information
Commissioner [2008] UKHL 47; [2008] 1 WLR 1550 [7]. The effect of the CSA
judgment is that the Tribunal must not err on the side of disclosure in a section 40
case (and similarly a case concerning regulation 13 EIR) without being sure that
disclosure would be compatible with the DPA. This does not mean that disclosure
cannot be justified; only that the Tribunal must be careful not to start from the
position of presuming disclosure should occur.

Under the Local Government Act 1972 (LGA 1972) Part VA, council meetings are
open to the public, and councils are required to make agendas, reports and
minutes of council meetings available. However, a meeting may be closed to the
public (and the papers not made available) if this would involve disclosing
‘confidential’ or ‘exempt’ information. For these purposes ‘confidential information’
is defined in LGA 1972 section 100A(3), and the categories of ‘exempt information’
are defined in LGA 1972 Schedule 12 A Part 1.

Section 100A (4) provides:-

“(4) A principal council may by resolution exclude the public from a meeting during
an item of business whenever it is likely, in view of the nature of the business to be
transacted or the nature of the proceedings, that if members of the public were
present during that item there would be disclosure to them of exempt information,
as defined in section 110l...”

Section 100F of the 1972 Act (additional rights of access to documents for
members of principal councils), as amended by the (as amended by the Local
Government (Access to Information) (Variation) Order 2006 (‘2006 Order’)
provides:-

“(1) Any document which is in the possession or under the control of a principal
council and contains material relating to any business to be transacted at a meeting
of the council or a committee or sub-committee of the council shall, subject to

subsections (2) to (2C) below, to be open to inspection by any member of the
council.

(2) In relation to a principal council in England, subsection (1) above does not
require the document to be open to inspection if it appears to the proper officer that
it discloses exempt information”.

Section 100l provides that:-

“(1) In relation to principal councils in England, the descriptions of information
which are, for the purposes of this Part, exempt information are those for the time
being specified in Part I of Schedule 12A, but subject to any qualifications
contained in part II of that Schedule...”

Part II of Schedule 12A includes Paragraph 9 which provides:-

“Information is not exempt information if it relates to proposed development for
which the local planning authority may grant itself planning permission or
permission in principle pursuant to regulation 3 of the Town and Country Planning
General Regulations 1992”.

Thus the LGA 1972 is different to the EIR. The LGA 1972 concerns Council
meetings and documents “relating to any business to be transacted at a meeting
of the council or a committee or sub-committee of the council” open to inspection,
some of which may be exempt. By contrast the EIR is legislation giving effect to
EC Directive 2003/4 which provides for a general right of access to the public of
environmental information held by a public authority (subject to exceptions).
Furthermore, “exemptions” under the LGA 1972 has a different meaning to
“exceptions” under the EIR.

Regulation 5(6) of the EIR provides:-
“(6) Any enactment or rule of law that would prevent the disclosure of information
in accordance with these regulations shall not apply”.

Commissioner’s Decision Notice:

[8] The Commissioner investigated the matter and held that the LLB correctly relied
on regulations 13 and 12(5)(e) of the EIR 2004 to withhold some of the requested
information from the complainant. The Commissioner reached her decision on the
following grounds:

“a. Regulation 13 is engaged regarding the author of the report (the Commissioner
being satisfied that the exception has not been applied to senior personnel of the
public authority):

i) The information constitutes personal data [DN 24];

ii) The withheld name is not the name of senior personnel of LBB [DN 36];

iii) Disclosure of the name would not be reasonably necessary to meet a
legitimate interest in any breach of regulation 19 EIR as a complaint to the
Commissioner would be less intrusive [DN 38].

b. Regulation 12(5)(e) EIR is engaged with respect to the withheld information as:

i. The information is commercial in nature as it relates to the development of
land, including projected building costs and revenues: DN [49];
ii. The information is subject to confidentiality provided by law: [DN 51] ;
iii. Disclosure would adversely affect the legitimate economic interests of LBB
and Middlesex University: [DN 52];
iv. Disclosure would also adversely affect the legitimate economic interests of
LBB and Middlesex University as such a disclosure at the time of the
response to the request would be made prior to all the then ongoing
negotiations between the parties and others regarding commercial matters
being concluded: DN [53].

c. The public interest balance lies in favour of withholding this information: DN [70-
71].

d. Having concluded that regulations 12(5)(e) and 13 were engaged, the
Commissioner did not consider it necessary to consider regulation 12(5)(f) EIR.”

Grounds of Appeal:

[9] The Appellant’s Grounds of Appeal detailed that the Commissioner erred in
concluding that regulation 12 (5)(e) was engaged due to a failure correctly interpret
regulation 12(5)(e). Further, that the Commissioner erred in concluding that
regulation 13 was engaged.

The Commissioner’s Response:

[10] The Commissioner maintained her position as outlined in the DN and resisted the
appeal. The Commissioner set out additional observations in respect of the
Appellant’s Grounds of Appeal.

[11] The Commissioner maintained, with reference to regulation 12(5)(e), that the
information concerns commercial figures and calculations in the context of
planning considerations. In addition, the Commissioner is satisfied that she
interpretated the exception correctly for the reasons set out in her DN. The
Commissioner raised that it is not necessary for her DN to refer to caselaw which
may or may not apply to the request investigated. Notwithstanding, the Appellant’s
content the Commissioner referred to Bristol City Council v Information
Commissioner & Portland and Brunswick Squares Association EA/2010/0012 and
Lloyd v Information Commissioner & Brent London Borough Council
EA/2019/0067P (“Lloyd”) to argue that regulation 12(5)(e) is engaged with respect
to the withheld information.

[12] With reference to the Upper Tribunal authorities relied upon by the Appellant, the
Commissioner reminded the Appellant that he bears the burden to demonstrate
that the Commissioner’s DN is not in accordance with the law. The Commissioner
submitted that save for broad assertions, the Appellant has failed to show that the
Commissioner’s findings were not in accordance with the law. Similarly, in relation
to the public interest balance test under regulation 12(5)(e), the Appellant did not

detail in his Grounds of Appeal why the Commissioner erred in reaching her
conclusions.

[13] The Commissioner, with regards to regulation 13, maintained that she was correct
to conclude that disclosure of the name of the junior official who authored the report
would be unfair and, would further not meet the condition under Article 6(1)(f)
UKGDPR on the grounds that disclosure under FOIA would not be reasonably
necessary to meet a legitimate interest.

Second Respondent’s Submissions :

[14] The Second Respondent continued to direct itself to the fact that EIRs have a
presumption in favour of disclosing which is a factor for disclosing. The Second
Respondent further considered its commitment to transparency and the public
interest in council decisions/spending being open to public scrutiny.

[15] The Second Respondent, in respect of the outline business case (“OBC”) stated
as follows:

“A careful consideration was made as to whether it was appropriate to withhold
these details and it was decided that, on balance, that it was appropriate to do
so. This was done through governance and the legal team.

The decisions have now been made and the committee were able to discuss
the development and the exempt paper, explore the options and ask questions
in private session and a safe space. Since the decisions were made, we have
progressed a number of key negotiations and hence do not feel that some
aspects of the papers are, on balance, quite so sensitive as they were when
they went to Public and Resources Committee so the council is able to release
some of the document and this is attached in a redacted form following
consultation with the third party.

However, following a review of the exempted paper, it has been decided to
release a redacted version following consultation with the third parties subject
to the exemptions listed below.”

[16] The Second Respondent, in respect of regulation 12(5)(d) stated as follows:

“... the Council argues that there are elements of the outline business case that
should be withheld to maintain ‘a safe, internal, confidential, private space (away
from the public hence external scrutiny) in which it is able to discuss and determine
such issues affecting it, in order to facilitate full and frank deliberation and debate
and permit high quality decision making which is required for the sound
performance of the Council as a whole.

The information relates to high level internal discussions where the options for the
business case are under active consideration. The outputs will be published as
part of the planning consultation process if it proceeds. There will be public
engagement in the summer and should there be any planning applications then
these will also be subject to public consultation.

The Outline Business Case and appendices were legitimately exempted from
publication at the December Policy and Resources Committee under Schedule
12A of the Local Government Act (LGA) 1972. A careful consideration was made
as to whether it was appropriate to withhold some of these details and it was
decided that, on balance, that it was appropriate to do so.”

[17] The Second Respondent, in respect of regulation 12(5)(e) stated as follows:

“Items detailed financial plans which would compromise our negotiations in the
marketplace and are commercially sensitive. These negotiations are with
neighbouring landowners, tenants (including Middlesex University) and potential
private financing routes.

The highly likely risk that the market competitiveness of the third party would be
harmed by disclosing its commercial information.

The council is embarking on sensitive commercial discussions with a number of
landowners and releasing further details on the scheme could prejudice those
discussions and worsen our negotiating position.

We are embarking on sensitive commercial discussions with a number of
landowners and releasing further details on the scheme would prejudice those
discussions and worsen our negotiating position.

The proposal is at a very early stage and would be subject to full consultation as it
develops. Public engagement consultation will commence in the next few months.”

[18] The Second Respondent referred the Tribunal to the Commissioner’s submissions
at paragraph [18] and the dicta from the House of Lords in Common Services
Agency v Scottish Information Commissioner [2008] UKHL 47 to argue the
decision note to disclose personal information under regulation 13.

[19] The Second Respondent adopted the Commissioner’s consideration of Lloyd and
subsequent submissions on the lack of relevance; the burden held by the
Appellant; and the failure to identify why the Commissioner had erred.

Appellant’s First Skeleton Argument:

[20] The Appellant argued that the LBB intentionally withheld that they were both the
developer and statutory planning authority for the proposed Hendon Hub. The
Appellant claimed that multiple officers knew for at least three years. Further, the
Appellant raised that the LBB never formally announced that they were both
developer and statutory planning authority. Therefore, the Appellant argued that
this information was intentionally withheld.

[21] The Appellant contends that the LBB knew that it was unlawful to withhold the
information from the public. The Appellant referred to the Local Government
Access to Information Variation Order 2006 to argue the same. Furthermore, the
Appellant averred that if it is unlawful for the LBB to withhold information under the
Local Government Access to Information Variation Order 2006 then it must be

unlawful for the LBB to withhold the same information under the EIR regulations.
In addition, if the LBB knowingly breached the Local Government Access to
Information Variation Order 2006 then there is a prima facie case for concluding
that regulation 19 EIR is applicable.

The Commissioner’s Second Submissions:

[22] In relation to the legality under schedule 12A LGA 1972, the Commissioner argues
that the Tribunal does not have jurisdiction to rule upon whether the LBB had
breached the LGA. Pursuant to section 57 FOIA, the Tribunal only has jurisdiction
over a DN issued by the Commissioner and is limited by section 58 FOIA. In this
particular case, the Tribunal are limited to whether the Commissioner was correct
to conclude in the DN that LBB correctly relied on regulations 13 and 12(5)(e) EIR
to withhold the information from disclosure.

[23] Turning to the unlawful withholding of the requested information, the Commissioner
submitted that this argument is not relevant to the Tribunal’s consideration of
whether the exceptions under 13 and 12(5)(e) EIR are engaged. Further. The fact
that some information is not exempt from disclosure under the LGA 1972 is not
determinative of whether that information can or cannot be withheld pursuant to a
request under EIR. Any complaint concerning the withholding of the information
under the LGA should be addressed to the Local Government Ombudsman.

[24] With regards to regulation 19 EIR, for this regulation to be engaged, it must firstly
be determined that the applicant would have been entitled to that information. In
addition, there is no evidence before the Tribunal that the LBB has altered, blocked
or concealed the withheld information with the intention of preventing the
disclosure. Furthermore, the Tribunal does not have jurisdiction concerning
proceedings under regulation 19 EIR.

Appellant Core Argument Document:

[25] Below is the Appellant’s Core Argument as exhibited:

APPEAL EA/2021/0039: CORE LEGAL ARGUMENT (ONE PAGER) v1.0

LGA: Para 9 of Schedule 12A (NOT ENGAGED)
LGA 1972 (SI 2006) EIR 2004/DPA 2018 (Aarhus) COMMENTS
Schedule 12A (Exemptions) All of EIR Reg. 12(Exceptions) Both LGA & DPA act with statutory intent to withhold information (i.e. legal intent is aligned)
Part 1: Personal (P1& P2) DPA 2018 ALL personal is dealt with under DPA 2018 regardless of whether LGA or EIR is considered.

Part 1: Financial (P3) EIR Reg. 12(5)(e) – Financial The lawfulness of withholding financial information (LGA vs EIR) operates as a siloed brick wall. The lawfulness of
withholding information under LGA and EIR is considered separately within the context of its own statute.
Part 1: LPP (P5) EIR Reg 12(5)(b), or FOI Sec. 42 LPP is subject to the FOI/EIR PIT

Public Interest Test Public Interest Test 1. The overall context for the two pits is the same (‘A’). However the specifics of the factors contained within the
(Context ‘A’) (Context ‘A’)) PIT will vary for each exemption/exception.
2. The LA controls the LGA PIT . The EIR PIT should be independently checked by IC and then double checked by
the Tribunal

LGA: Para 9 of Schedule 12A (ENGAGED)
LGA 1972 (SI 2006) EIR 2004/DPA 2018 (Aarhus) COMMENTS
Schedule 12A (Exemptions) All of EIR Reg. 12(Exceptions) Para 9 act with statutory intent to prevent withholding information. EIR acts to withhold information
(i.e. legal intent are polar opposites)
Part 1: Personal (P1 & P2) DPA 2018 ALL personal is dealt with under DPA 2018 regardless of whether LGA or EIR is considered.

Part 1: Financial (P3) EIR Reg. 12(5)(e) – Financial The statutory intent of Para 9, in the context of any other UK legislation, must be assess to confirm whether Reg.
12(5)(e) is actually engaged.
Part 1: Legal (P5) LPP It appears that Legal advice was not part of the withheld information (the Tribunal can confirm as part of close
bundle). A separate question is whether legal advice that ‘relates to’ unlawfully invoking Schedule 12A is impacted
by Para 9 (as it was not shared with councillors) or whether Para 9 is a factor in the EIR PIT
Public Interest Test Public Interest Test 1. The overall context for the two pits is the same (‘A’). However the specifics of the factors contained within the
(Context ‘A’) (Context ‘A’) PIT will vary for each exemption/exception.
2. The LA controls the LGA PIT . The EIR PIT should be independently checked by IC and then double checked by
the Tribunal
3. The PIT must now include the statutory intent of Para 9 (as an unqualified non-exemption).

CONCLUSION
1. Para 9, Schedule 12A 9 impacts whether (i) the EIR exception is lawfully engaged and (ii) the associated PIT is balanced towards full disclosure
2. Para 9, Schedule 12A implies full under disclosure under EIR. This is because any other outcome makes Para 9 & 10 of Schedule 12A redundant. I assert that any decision (by the IC or the
Tribunal) to make para 9 redundant to be ‘irrational’ (unless otherwise justified)

EA-2021-0039_Core Argument (LGA Schedule 12A Vs EIR exceptions) v1.0.docx

The Second Respondent’s Amended Submissions:

[26] The Second Respondent agreed with the Commissioner’s approach outlined at
paragraph 36 of her submissions. Paragraph 36 is as follows:

“Regarding the public interest balance under regulation 12(5)(e), the Appellant
does not set out in his GOA the reasons why he considers that the Commissioner
erred in concluding that the public interest in maintaining the exception under
regulation 12(5)(e) outweighed the public interest in disclosure of the requested
information. The Appellant simply argues that the Commissioner erred in law in
“...e.g. ignoring EIR basic assumption that the PIT favours disclosure as its starting
assumption”. However, the Commissioner did not ignore this as she recognised

the presumption in favour of disclosure under regulation 12(2) EIR in paragraph 57
of the DN.”

[27] The LBB further reminded themselves of their commitment to transparency and
the ‘public interest in council decisions/spending etc being open to public scrutiny’.

[28] The Second Respondent, in respect of the outline business case stated as follows:

However, following a review of the exempted paper, it has been decided to
release a redacted version following consultation with the third parties subject
to the exemptions listed below.”

[29] The Second Respondent, in respect of regulation 12(5)(d) stated as follows:

[30] The Second Respondent, in respect of regulation 12(5)(e) stated as follows:

The highly likely risk that the market competitiveness of the third party would be
harmed by disclosing its commercial information.

We are embarking on sensitive commercial discussions with a number of
landowners and releasing further details on the scheme would prejudice those
discussions and worsen our negotiating position.

The proposal is at a very early stage and would be subject to full consultation as it
develops. Public engagement consultation will commence in the next few months.”

[31] The Second Respondent referred the Tribunal to the Commissioner’s submissions
at paragraph [18] and the dicta from the House of Lords in Common Services

Agency v Scottish Information Commissioner [2008] UKHL 47 to argue the
decision note to disclose personal information under regulation 13.

[32] The Second Respondent adopted the Commissioner’s consideration of Lloyd and
subsequent submissions on the lack of relevance; the burden held by the
Appellant; and the failure to identify why the Commissioner had erred.

Appellant’s Closing Submissions:

[33] The Appellant submitted that the reason for his EIR request was that the LBB had
failed to disclose that they were both the developer and statutory planning authority
for the Hendon Hub. Therefore, engaging para 9 of Schedule 12A LGA. The
Appellant averred that had the residents been aware of the same judicial review
proceedings would have been issued. In addition, the Appellant submitted that the
Second Respondent’s actions were knowingly unlawful.

[34] The Appellant contended that the Commissioner erred in her failure to include
either common law or statute in her DN. The Appellant stated that the Tribunal has
jurisdiction to hear any errors of law by either the LBB or the Commissioner.

[35] The Appellant argued that regulation 12(5)(e) EIR is not engaged in this case as
where para 9 of Schedule 12A LGA is engaged, the authority is obligated to publish
information as a matter of public interest. in relation to regulation 12(5)(f) EIR the
Appellant stated that regardless of whether ‘Muse’ is subject to this exception, para
9 of Schedule 12A LGA influences regulation 12(5)(f) EIR in favour of disclosure.

[36] The Appellant invited the Tribunal to distinguish between regulation 13 EIR and
Regulation 19 EIR. The Appellant argued that the statutory intent of para 9 of
Schedule 12A LGA, which is consistent with the Data Protection Act 1998 is such
that para 9 of Schedule 12A LGA is engaged and it is in the public interest for
personal information associated with LBB internal reports to be published.

Appellant’s Second Skeleton Argument:

[37] The Appellant submitted in relation to para 9 and 10 of Schedule 12A LGA, that
both are fully compatible with the EIR regulations and the Data Protection Act 1998.
Further that the statutory intent of para 9 of Schedule 12A LGA, in this instance, is
that it is in the public interest to ensure transparency into how public funds are used
in the development of public assets. The Appellant argued that para 9 of Schedule
12A LGA is an absolute non-exception which does not allow information to be
withheld.

[38] In response to the claim that the Tribunal does not have the jurisdiction to rule on
LGA breaches, the Appellant contended that the Commissioner is misguided in
this belief. Further, that the legislative nature of para 9 of Schedule 12A LGA, is
that the EU Directive encourages EU countries to pass legislation that extends the
scope and obligations. Therefore, para 9 of Schedule 12A LGA applies as it
ensures transparency and encourages public participation. The Appellant’s
argument in this respect is two-fold. Firstly, para 9 of Schedule 12A LGA concerns
legislation that impacts whether an EIR exception is lawfully engaged and/or
legislation that impacts the EIR exception’s associated with the public interest test.

[39] The Appellant contended that the LBB’s reliance on EIR exceptions are unlawful.
Alternatively, the Appellant averred if regulation 12(5)(e) or regulation 12(5)(f) are
lawfully engaged, para 9 of Schedule 12A LGA applies and favours disclosure of
the withheld information.

[40] The Appellant stated that in relation to regulation 12(5)(f), without para 9 of
Schedule 12A LGA impacting the EIR, the Commissioner failed to consider the
same in her DN. With para 9 of Schedule 12A LGA impacting the EIR, para 9 does
not distinguish whether financial information was provided on a voluntary basis.
Turning to regulation 13 with para 9 of Schedule 12A LGA impacting the Data
Protection Act 1998, para 9 of Schedule 12A LGA was added after the Data
Protection Act was statute. Therefore, para 9 of Schedule 12A LGA is compatible

with the Data Protection Act. The Appellant repeated this contention for regulation
13 without para 9 of Schedule 12A LGA impacting the Data Protection Act.

[41] The Appellant requested that regulation 19 EIR be dealt with separately from the
Appellant’s core argument. The Appellant posed the following questions for the
Tribunal:

“Q1: Does the Tribunal have jurisdiction to assess whether EIR Reg. 19
applies? I claim that the Tribunal does have jurisdiction to assess Reg. 19 as
the Tribunal has jurisdiction to reconsider any matter that the IC is lawfully able
to consider. If Yes, then ...
Q2: Does the Tribunal have jurisdiction to assess whether Para 9 was
engaged? And if yes, was Para 9 engaged? If Para 9 was engaged then ...
Q3:Does the Tribunal agree that, on the balance of probabilities, one or more
named Barnet Officers/Councillors knowingly unlawfully invoked Schedule 12A
of LGA 1972 to withhold information from the public? If Yes then ...
Q4: To what extent does a knowingly unlawful action by a Barnet employee
under LGA equate to a breach of Reg. 19. For example, in law, do knowingly
unlawful activities under LGA equate to intentionally “blocking” or “concealing”
the same information under EIR. I claim that it does.
Q5: Where the Tribunal finds that one or more Barnet employees have, in all
probability, intentionally blocked or ‘intentionally concealed’ information from
the Appellant under EIR legislation, then what action is the Tribunal lawfully
allowed to initiate that will trigger an investigation as to whether anyone is guilty
of an offence under EIR Reg. 19?”

Second Respondent’s Closing Submissions:

[42] The Second Respondent made the following submissions to encapsulate the
approach by which the Tribunal has the jurisdiction to and should approach the
appeal:

“(1) While this appeal is a ‘full merits appeal’, it is an appeal solely against the DN
by the ICO;

(2) For reasons outlined in the ICO’s Second Submissions, the Tribunal does not
have the jurisdiction to determine appeals against decisions made by Barnet under
the LGA, including if there was a supposed error of law under the LGA;

(3) The ICO, in its DN, came to the reasonable fact sensitive conclusion that
Barnet had not erred in law (itself a mixed question of fact and law) in determining
that the documents it decided not to disclose to the Appellant (by December 2020
and thus excluding those documents or parts of documents that were disclosed
during 2020) fell within the exceptions relied upon; and the Appellant has failed to
show that this decision (even if it is not a decision that the Appellant liked) was
wrong;

(4) The (new) suggestion by the Appellant that the exceptions can only apply
where a potential developer is in ‘competition’ with another are incorrect and an
over- narrow construction of exceptions that apply wherever the public interest in
preserving commercial confidentiality (etc) outweighs the public interest in
disclosure, including where a public body engages with only one developer;

(5) The Appellant’s novel argument (unsupported by caselaw) that reg. 19 EIR –
by which ‘...any person to whom this paragraph applies is guilty of an offence if he
alters, defaces, blocks, erases, destroys or conceals any record held by the public
authority, with the intention of preventing the disclosure by that authority of all, or
any part, of the information to which the applicant would have been entitled’ – is
engaged or that there is any evidence that it has been committed has no merit; and

(6) To the extent that the Appellant still relies on it, his argument that reg. 13 of
the EIR requires the identification of the (relatively junior) official who was the
author of the report is wrong in law.”

Final Written Submissions of the Commissioner:

[43] The Commissioner made the following submissions considering the recent death
of the Appellant. The Appellant, in this instance, was exercising his right to have
environmental information communicated to him if held by LBB pursuant to
regulation 5(1) EIR. The Commissioner referred to regulation 18 EIR and the
enforcement and appeals provisions under regulation 18(2) EIR. The
Commissioner outlined the rights exercised by the Appellant under section 50 and
57 (1) FOIA.

[44] The Commissioner reminded the Tribunal that if the appeal were allowed the
information would be available to the public without restriction. Therefore, the
appeal does not cease to have any meaning or purpose on the death of the
Appellant. The Commissioner referred to Sugar (deceased) v BBC & another
[2012] UKSC 4, to argue the same.

[45] The Commissioner was not aware of whether the Appellant’s personal
representative wished to pursue the appeal nor was the Commissioner aware of
the Appellant acting on the behalf of the residents of Hendon.

Conclusion:

[46] The Tribunal does not have jurisdiction to rule upon whether the Council has
breached the LGA and, as noted in S.57 FOIA the appeal of a requester or public
authority is against the Decision Notice and therefore it is not an issue for the FTT.

[47] Para 18 p 428 Authorities bundle – the reference in paragraph 18 shows that the
confidentiality regulations in the LGA relate to the confidentiality of proceedings not
information. (See: Chichester DC v Information Commissioner and Friel 2023
UKUT 491 AAC).

[48] An innocently mistaken application of an exemption in EIR cannot engage the
criminal offence relating to the destruction/deliberate withholding of information
contained in Regulation 19 – this would be disproportionate and too far reaching
given the judgement necessary to be applied by individual officers working on
FOIA/EIR responses within public authorities.

[49] There was no evidence presented by the Appellant or in the closed bundle that any
wrongdoing or misconduct has taken place and, as always in the FTT, we therefore
work with a presumption that the public authority acted in good faith.

[50] The Appellant agreed that the officer was too junior to be identified and therefore
(s)he should not be named.

[51] The information requested is covered by s.12(5)(e), in that it is commercial in
nature as land development information including financial information, it is further
confidential in nature and would have an adverse impact on the commercial
interests of the Council.

[52] We found the point raised by Mr Hoar persuasive in that the Public Authority is not
a regular commercial actor and is hindered by the constraints placed upon it by
virtue of its being a public authority. Accordingly, if the Borough revealed the
information commercial parties would be more reluctant to deal with the Borough
in future for fear of their information being released as the Council would be seen
as too free to release information which could enable other commercial actors to
capitalise on the situation to improve their position.

[53] We find that this was also a very early stage in the project which increases the
sensitivity of the information. We are looking at the public interest at the time when
the business case was still being worked on.

[54] The Appellant had also been provided with a significant amount of information and
therefore there has been a demonstration that LBC have sought to be as
transparent as possible.

[55] The appellant asserted that DN had to be in accordance with ‘any’ law which we
find unsustainable.

[56] While the Commissioner only considered 12(5)e & 13. And did not go on to
consider 12(5)f – we accept and agree that the first 2 exemptions cover the
information. Further we note that the Information Commissioner were thorough in
their investigations and as a result significant additional information was released.

[57] While the Appellant argues the fact that the release of the information cannot just
be considered as if it ‘might’ cause harm. The Commissioner in the DN at A23 para
says ‘would likely’ cause harm.

[58] The Tribunal have had the advantage of reading the Closed Bundel with the
appendices in reaching our decision.

[59] Finally, we have carefully considered the Appellants submissions and cannot find
any further material relevant facts or arguments in favour of disclosure. We find
that the Commissioners Final Submission 30/3/2022 and the closing submissions
of the Second Respondent seem to us to adequately counter the
appellants arguments.

[60] For all the above reasons we have not been persuaded that there is any error of
Law in the DN.

[61] Accordingly we must dismiss this appeal.

Brian Kennedy QC 15th June 2022.

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