Mark Jopling Obo Udney Park Playing Fields Trust Ltd v Information Commissioner & Anor

Factual and Procedural Background

This opinion concerns a second decision on an appeal under section 57 of the Freedom of Information Act 2000, challenging the Information Commissioner's Decision Notice which upheld the refusal by a local council ("the Council") to disclose information requested by the Appellant under the Environmental Information Regulations ("EIR"). The initial decision found the Commissioner erred in upholding the Council's reliance on regulation 12(5)(f) of the EIR. The Tribunal adjourned to join the Council as a party and to consider other exceptions (regulations 12(5)(d) and (e)) originally relied upon by the Council. The information request, made on 10 June 2022, sought all correspondence relating to pre-application advice for proposals requiring planning permission at a specified location of open land within the Council's area. The withheld information included the pre-application itself, advice, and associated correspondence, contained in a Closed Bundle not disclosed to the Appellant. The Tribunal's remit is to consider whether the Commissioner's Decision Notice was legally correct and whether discretion was properly exercised, with authority to receive new evidence and make fresh findings.

Legal Issues Presented

1. Whether the Council was entitled to refuse disclosure of the requested information under regulation 12(5)(d) of the EIR, which protects the confidentiality of proceedings of a public authority.
2. Whether the Council was entitled to refuse disclosure under regulation 12(5)(e) of the EIR, which protects the confidentiality of commercial or industrial information to safeguard legitimate economic interests.
3. Whether the public interest in maintaining these exceptions outweighed the public interest in disclosure.

Arguments of the Parties

Appellant's Arguments

• This information was not explicitly detailed in the opinion.

Second Respondent's Arguments

• Argued that the information related to the Council's "Formal pre-application service," described on the Council’s website as a chargeable service providing informal officer advice on specific schemes.
• Maintained that the withheld information was confidential and that disclosure would harm legitimate economic interests by providing competitors with insights into the service user's market position and investment plans.
• Asserted that premature disclosure would adversely affect the confidentiality of commercial information protected by law.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal first analysed whether the exception under regulation 12(5)(d) applied by considering if the disputed information related to "proceedings" of the Council. Drawing on ICO Guidance and the cited Upper Tier Tribunal precedent, the Tribunal noted that "proceedings" require a degree of formality and involve final decision-making stages. The pre-application advice was found to be informal, voluntary, and administrative rather than part of any formal or statutory decision-making process. Consequently, the exception under regulation 12(5)(d) did not apply.

Regarding regulation 12(5)(e), the Tribunal applied the four-stage test from the Commissioner's guidance: the information must be commercial or industrial in nature, confidentiality must be provided by law, the confidentiality must protect a legitimate economic interest, and disclosure must adversely affect that confidentiality. Although the Council argued that disclosure would harm the service user's competitive position, the Tribunal found these assertions unsupported by evidence or specificity. Upon reviewing the disputed information, the Tribunal was not satisfied that disclosure would adversely affect confidentiality. Therefore, this exception also did not apply.

The Tribunal noted the Second Respondent’s acceptance that some information might be subject to disclosure under regulation 12(9), but did not determine this issue due to the findings on the main exceptions and lack of detail on what would be disclosed.

Holding and Implications

The appeal is DISMISSED. The Second Respondent is ordered to disclose the requested information, subject to redactions for personal data, within 35 days of the decision's promulgation.

The decision directly affects the parties by requiring disclosure of the requested information but does not establish new legal precedent beyond the application of existing principles under the Environmental Information Regulations and the Freedom of Information Act.