(General Regulatory Chamber)
Information Rights
B e f o r e :
MEMBER PALMER-DUNK
MEMBER SIVERS
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RUTH FARNSWORTH |
APPELLANT |
|
- and - |
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THE INFORMATION COMMISSIONER (IC) |
RESPONDENT |
____________________
Appellant: in person
Respondent: did not appear
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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
Decision: The appeal is Allowed
To: Erewash Borough Council, Town Hall, Ilkeston Derbyshire DE7 5RP
The Council shall disclose the requested information within 21 days of the date hereof
"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 .
"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
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.
"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."
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.
"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."
"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."
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.
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.
Consideration
The Applicable Law
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.
"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."
"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, 1315 June 2008), requested an updated edition of the Implementation Guide be prepared".
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;
"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
Signed
Hughes
Date: 9 June 2025