Public bodies that try to use the ‘manifestly unreasonable’ exception under the Environmental Information Regulations 2004 to impose blanket refusals on environmental campaigners seeking information will need to meet exacting standards.
In the case of Paul Cawthorne v Information Commissioner [2024] UKFTT 978 (GRC), the First Tier Tribunal overturned the decision of the Information Commissioner and ordered Telford and Wrekin Council to reconsider the request for test results of leachate coming from the Stoneyhill landfill site.
Without providing substantiating evidence, the Council had suggested the appellant had behaved in an abusive and aggressive manner, made repeat, scattergun and futile requests, was pursuing personal grudges, was being unreasonably persistent, intended to cause annoyance, and claimed there was not purpose or value in the request.
The Tribunal considered the circumstances surrounding the appellant’s request against the five factors set out in the Court of Appeal decision of Dransfield Information Commissioner & Devon County Council and Craven v Information Commissioner and DECC [2015] EWCA Civ 454.
As to the burden on the public authority and its staff, the Tribunal noted that while the requests were repetitious and persistent in requesting testing data, “equally the information had not been provided”. Furthermore, the Council’s “partial answers (or even complete answers) may have led to further questions as the Appellant wanted a complete overview of the testing regime, the nature of those tests (i.e. what was being tested) and the results of the tests.”
In terms of the motive of the appellant, the Tribunal was clear that he was a long-standing environment campaigner with long-standing concerns about the site. The Tribunal found that “the ongoing reluctance” to provide data that clearly existed “was bound to cause additional concerns about what was being concealed” because “[t]hat was human nature”.
The Tribunal was unequivocal that the request had value or a serious purpose; ‘the concerns were contamination of the surrounds and waterways and impact on health’. It also found that there was interest in the wider local community and the national media and that, by putting an FAQ page on their website, the Council had contradicted their own argument.
In considering whether there had been ‘harassment or distress’, the most the Tribunal found was ‘frustration as to why the information was not being published and a suspicion that something was being hidden’, which did not amount to harassment.
While the ‘manifestly unreasonable’ exception was not found to have been engaged, the Tribunal considered it in brief finding that “there was very little in favour of the public interest in maintaining the exception save to stifle genuine requests for information about the site.”
The decision serves as a reminder to public authorities that they are likely to save themselves considerable time and resources if they adopt a policy of openness and transparency towards the release of environmental information. Not only is such a policy required by the Environmental Information Regulations but, as the Tribunal highlighted, the opposite leads to more suspicion and further requests for information. “If there are genuinely no concerns about the site, a pertinent question was why the information had not been released.”
The appellant was represented by Goodenough Ring Solicitors, who instructed Claudia Hyde of Landmark Chambers