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First-tier Tribunal (General Regulatory Chamber)


You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Farnsworth v Information Commissioner [2025] UKFTT 670 (GRC) (12 June 2025)
URL: http://www.bailii.org/uk/cases/UKFTT/GRC/2025/670.html
Cite as: [2025] UKFTT 670 (GRC)

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Neutral Citation Number: [2025] UKFTT 670 (GRC)
Case Reference: FT/EA/2023/0045

First-tier Tribunal
(General Regulatory Chamber)
Information Rights

Decision Given On: 12 June 2025

B e f o r e :

JUDGE HUGHES
MEMBER PALMER-DUNK
MEMBER SIVERS

____________________

Between:
RUTH FARNSWORTH
APPELLANT
- and -

THE INFORMATION COMMISSIONER (IC)
RESPONDENT

____________________

Representation:
Appellant: in person
Respondent: did not appear

____________________

HTML VERSION OF DECISION
____________________

Crown Copyright ©

    Cases and materials

    United Nations The Aarhus Convention an Implementation Guide, Second Edition 2014

    Bingham, Widening Horizons The Influence of Comparative Law and International Law on Domestic Law Hamlyn Lectures 2009, Cambridge University Press

    Highways England Company Ltd v Information Commissioner and Henry Manisty

    [2018] UKUT 423 (AAC)

    Decision: The appeal is Allowed

    Substituted Decision Notice

    To: Erewash Borough Council, Town Hall, Ilkeston Derbyshire DE7 5RP

    The Council shall disclose the requested information within 21 days of the date hereof

    REASONS
  1. The Appellant in these proceedings made a subject access request to Erewash Borough Council for information about a planning application which she had made. The relevant part of the request was:
  2. "Please supply the data you hold about the following, which I am entitled to receive under the data protection law:

    • DLP report for planning reference ERE/0821/0003…

    • Confirm the names for the 6 objection letters received by planning, reference ERE/0821/0003, if you can't provide the names please state why and confirm the number of households that provided the 6 objections.

    • Provide the separate dates for the 6 objections received by the planning office for planning reference ERE/0821/0003…

    • Provide all the information you hold for planning reference [reference number and address redacted], including any notes, plans, any pre-planning advice etc.

    • Provide any information held by planning for reference ERE/0821/0003….

  3. The Council, responded on 21 November 2021 explaining that the matter should properly be considered under FOIA/EIR. On 25 November it provided most of the information but withheld one part of it "DLP report for planning reference ERE/0821/0003," The Council explained that:
  4. "The DLP report no longer exists. It was a draft report submitted to the council (by DLP consultants who assessed the application on the council's behalf) and the report was subsumed into the council's committee report (to planning committee on 10 November). It was over-typed, re-formatted and saved as a new document. We do not hold the draft report Mrs Farnsworth is asking for…

  5. The Appellant responded:
  6. In the meantime please can you ask DLP for a copy of the draft report sent to Erewash planning ERE/0821/0003. you claim the report has been overwritten, although the council should retain documents for a certain period of time. Erewash has not allowed DLP to give me a copy of the report. however on your website DLP is my case officer therefore please can you request a copy for me or allow DLP to release it.

  7. On 29 December 2021, the Council wrote to the complainant explaining that it was relying on an exemption from disclosure in the Environmental Information Regulations, regulation 12(4)(d) of the EIR. It asserted that what she was seeking was a draft document, that all draft documents are unfinished, even if the final version has been produced and the draft was exempt from disclosure. It maintained that position on internal review.
  8. The Appellant complained to the Information Commissioner who investigated and issued a decision notice IC-161236-C9S5 in which he concluded that the withheld information was a "draft version of a decision made by the Council in relation to a planning application",
  9. "14 The Council explained to the Commissioner that a third party was contracted to assist with a number of planning applications, due to an increased workload. The contract involved the third party investigating and processing planning applications which were then sent for consideration by the Council's Head of Planning and the Development Control Manager; much the same way that the Council's own officers would work.

    15. The Council advised that the third party confirmed that it did hold a copy of the draft report and, therefore, the Council concluded that the third party were holding it on behalf of the Council."

  10. The Council's position was that all relevant issues had been considered, there was sufficient transparency from the published information and that the preliminary discussions added nothing of substance and:-
  11. the Council is simply standing behind its opinion that internal (or otherwise) discussions at early and intermediate stages of the planning process should be allowed to be carried out without impeding the overall planning process.

  12. The Commissioner accepted the council's position
  13. "35. The Commissioner has viewed the draft decision document and notes that whilst there are some changes, these do not have any impact on the outcome of the final draft report that has been disclosed. Amendments have been made from the draft to the final version, however, these are to make the final version clearer and more concise,

    …

    37. Having considered all the factors referred to above, the Commissioner has concluded that, in this case, the public interest favours maintaining the exception. Therefore, he considers that the Council has correctly withheld the requested information and that it was correct to rely on regulation 12(4)(d) of the EIR."

  14. The Appellant applied to the tribunal, the Respondent asked for the appeal to be struck out and on 5 July 2023 the judge did so on the basis that the appeal had no reasonable prospect of success stating
  15. "It does not seem to me that any Tribunal properly directed could allow this appeal

    because it does not suggest any error of law in the Decision Notice and the Appellant

    seeks a remedy which the Tribunal may not provide."

  16. Following a hearing on 13 February 2024 the Upper Tribunal gave permission to appeal against the strike out decision and after a substantive hearing on 12 July 2024 issued a decision reinstating the appeal. The judge noted:
  17. a. asking the FTT to tell her the "differences" between the information she requested (in her terms, the DLP consultants report), and a report published by the council (and to which she had access), Mrs Farnsworth was in effect just asking (again) for disclosure of the information she had requested; and

    b. it was inherent in her information request (by her repeated reference to the "DLP consultants report") that she regarded her request as relating to a self-standing document (being a (complete) document delivered by a separate company, DLP Planning Ltd, to the council) – and so, contrary to the position taken in the challenged IC decision, outwith regulation 12(4)(d) (although Mrs Farnsworth, not being a lawyer, did not articulate her position by reference to that regulation).

    Furthermore

    19. A litigant in person in person, like Mrs Farnsworth, will not be across the ins and outs of the law. What such litigants will therefore often do – as Mrs Farnsworth did in this case – is simply throw before the tribunal all the reasons she believes the challenged decision is wrong.

    20. In such cases it is for the tribunal, on an application to strike out under rule 8(3)(c), to look at those reasons, reasonably and realistically and with fairness and justice firmly in mind, and decide whether they disclose a realistic case that, in this case, the challenged IC decision wrongly applied the law.

  18. The judge then reviewed the history of interactions between Mrs Farnsworth and DLP Planning and concluded:
  19. 22. In my view, it is reasonably clear from what is noted above that Mrs Farnsworth felt that she had been interacting with "DLP Consultants" during a significant part of the planning application process and, for various reasons, wanted to see the report that DLP had written and given to the council. It is reasonably clear that, from her perspective, the DLP report is something distinct and selfstanding; she does not regard it as the "draft" of what later appeared on the council's website. (The fact that, in an email to IC, Mrs Farnsworth adopted IC's approach of referring to the requested information as a "draft " report, does not affect what I say here, or amount to Mrs Farnsworth "conceding" this point).

    23. Clearly, the challenged IC decision saw matters differently: this was spelled out at paragraphs 13 and 14, cited above. IC asserts that, in the language of regulation 12(4)(d), there was one "document" (presumably, the council's published notice of decision at page D114 of the FTT bundle and following); and what DLP produced was but a "draft" of that document (and so an "unfinished" version of it); the situation is analogous, IC say, to the council's employees drafting a document that is later finalised and published by the council.

    24. I am not here deciding whose interpretation of these matters is correct; but it does seem to me clear from the materials sent with her FTT appeal form that Mrs Farnsworth has a position that engages the question of whether the challenged IC decision erred in law – and her position is that it did, because the DLP report was a distinct (and complete) document (rather than a "draft").

    27. In my view the evidence it seems, from her FTT appeal form, that Mrs Farnsworth would be likely to give (that DLP had a standalone role in the planning application – and so their report to the council was not, in the circumstances, a "unfinished" version of what the council later published) – gives her argument the required degree of conviction to be "realistic" as opposed to "fanciful"; it obviously differs from the perspective of the challenged IC decision, at paragraphs 13 and 14 (as cited above); and so it will be the job of the FTT, at least in part, to determine which version is right, based on all the evidence put before it.

  20. In the various documents and her presentation before this tribunal the Appellant was clear that she repeatedly interacted with staff of DLP on a range of aspects of the planning application. They were clearly exercising their professional judgement in carrying forward the investigation of the planning application and reporting it to the Council which were not in the event discharged due to the Council. DLP prepared and submitted a report to Erewash Council which the Council then used in its administrative process to decide the planning application.
  21. Consideration

  22. The issue for the tribunal is whether that course of conduct between DLP, Erewash and Mrs Farnsworth has been correctly analysed by Erewash and the Information Commissioner as falling within regulation 12(4)(d).
  23. The Applicable Law

  24. The starting point is an analysis of the relevant provision of the Environment Information Regulations which states (so far as is relevant):-
  25. Exceptions to the duty to disclose environmental information

    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.

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

    (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.

    (4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—

    (a) it does not hold that information when an applicant's request is received;

    …

    (d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or

    (e) the request involves the disclosure of internal communications.

    …

  26. While at early stages the Council appeared to consider relying on (a) and (e) it wisely did not do so as they were clearly untenable but instead pinned its colours to "material which is still in the course of completion, to unfinished documents or to incomplete data"
  27. These regulations have their origin in the work of a United Nations body – the UN Economic Commission for Europe, the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters which came into force on 30 October 2001 and which was signed and ratified by Her Majesty's Government and also by the European Union. The 2004 Regulations were made on 21 December 2004 (repealing the 1992 Environmental Information Regulations) having been approved by each House of Parliament under the European Communities Act.
  28. Given the roots of these regulation in treaties which the UK has entered into; it is important to bear in mind the guidance of Lord Bingham (MR):
  29. "When construing a UK statute giving effect to an international convention, a British court does not interpret the statue as if it were a purely domestic instrument."

  30. The Secretary-General of the UN issued the second edition of "The Aarhus Convention An Implementation Guide" in 2014, the preface explained its origin:
  31. "In recognition that considerable experience in the Convention's implementation had been gained since the first edition of the Implementation Guide was published, the Meeting of the Parties to the Convention, at its third session (Riga, 13–15 June 2008), requested an updated edition of the Implementation Guide be prepared".

  32. The Vienna Convention on the Law of Treaties 1969 provides with respect to interpretation by Article 31
  33. Article 31 General rule of interpretation

    1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

    2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

    (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

    (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

    3. There shall be taken into account, together with the context:

    (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

    (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

  34. The EIR therefore should, following Lord Bingham's guidance, be interpreted in the light of the UNECE guide. Of particular relevance to the question before this tribunal are passages at page 84:-
  35. "However it is clear that the expression "in the course of completion" relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared.

    ….

    Similarly, the mere status of something as a draft alone does not automatically bring it within the exception. The words "in the course of completion" suggests that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the "course of completion" they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. "In the course of completion" suggests that the document will have more work done on it within some reasonable timeframe.

    …

    A similar conclusion was reached by the Conseil d'Etat of France, in case N° 266668 (7 August 2007) with respect to the use of the term "unfinished documents" in Directive 90/313/EEC. The Conseil d'Etat held that a provision excluding preliminary documents produced in the course of drawing up an administrative decision from the right of access to environmental information is not compatible with article 3, paragraph 3, of Directive 90/313/EEC which limits the possibility for a request for environmental information to be refused to when the request concerns "unfinished documents"

    The Context

  36. The traditional practice of local planning authorities in England is that a planning officer of the council considers a planning application in the light of the law and the relevant planning policies and then writes a report for a more senior member of staff who either submits it to the council's planning committee or to the director of planning for decision within the scheme of delegation of the council. The commentary and analysis of the planning application and the public comments on it is entirely carried out by council staff and all the documents they generate are internal documents which may fall within the exemption contained in regulation 12(4) (e). Erewash Council appear to have applied that thinking to this request.
  37. The actual context of this information request is markedly different. Mrs Farnsworth was informed that her planning officer was an employee of DLP, all her contact and discussion of her planning application was with DLP and the request she made was for the report prepared by DLP. This is entirely distinct from documents generated within Erewash Council. In discharge of their contractual obligations to the Council, DLP investigated and considered the planning issues and prepared their report which DLP then submitted to Erewash, no doubt with an account of their charges for work on application ERE/0821/0003. This was a commercial transaction with a defined output and an obligation on the Council to pay on completion of the work and submission of the bill. The work was completed, the document and bill delivered.
  38. What Mrs Farnsworth wanted was to see what DLP had done, that was a concluded document which had been delivered to Erewash Council. The UNECE guidance is clear, "in the course of completion" relates to that specific document for which DLP has charged the Council, not to the decision-making of Erewash Council on that application. The application of the Conseil D'Etat decision on case N° 266668 (7 August 2007) is clear. The DLP document was produced "in the course of drawing up an administrative decision" and may not be excluded from disclosure.
  39. In Manisty Judge Jacobs emphasised that this provision should be interpreted restrictively and "It is not engaged when a piece of work may fairly be said to be complete in itself". That is clearly the case here, DLP's work was done it was not incomplete. The description of "draft" is misleading. By the time the request was submitted not only was the document sought long since completed, but the decision of the planning authority had been made. The tribunal is satisfied that the exception did not apply. Furthermore, even if the exception did, there was at this stage no public interest in withholding the DLP document from the public.
  40. The appeal is allowed.
  41. Signed

    Hughes

    Date: 9 June 2025

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