FT/EA/2025/0126 - [2025] UKFTT 01344 (GRC)

Discussion and conclusions

As a preliminary point, Mr Owen argues in his Grounds of Appeal that the IC based its decision on new information and arguments made by the Council, rather than the reasons set out in the Council’s revised response to the request dated 1 August 2025. He argues that he was not aware of or given the opportunity to comment on the Council’s case by the IC which renders the IC’s decision unfair. Mr Owen expanded on this further in his reply.

Mr Owen also argues that the IC’s decision incorrectly takes into account information and events after the cut-off date of 7 May 2024 when it first responded to his requests. In relation to this point, the appeal before the Tribunal is in relation to the revised response sent by the Council on 1 August 2024 as this is the decision which the IC considered and in respect of which a right of appeal to this Tribunal lies, not to the earlier response dated 7 May 2024, which was in effect superseded by the response on 1 August 2025.

The Tribunal is not conducting a judicial review of the decision with a view to determining whether it was unfair or irrational; that would be a matter for the Administrative Court. Rather, the Tribunal’s role is to determine whether the Decision Notice was in accordance with the law. We are concerned with what the IC decided, not how it was decided. In any event, we are satisfied that Mr Owen did have an opportunity to submit information and views to the IC ahead of the Decision Notice, of which he availed himself. He also has had a fair opportunity to present his case in the course of this appeal to this Tribunal, which, as noted above, may consider information not available to the IC when making its decision. The IC’s guidance on which Mr Owen seeks to rely appears to date from 2015, so is significantly out of date and does not reflect the more recent case law. The IC’s guidance is persuasive rather than binding on the Tribunal in any event.

We therefore consider that it is appropriate to proceed to consider the appeal taking into account all the evidence which was presented to the Tribunal. The Tribunal is concerned with the decision of the IC, not that of the Council, and needs to review all the information which the IC took into account when making its decision.

In considering whether the request was vexatious, our starting point is the four parts of the test set out in Dransfield and outlined above.

The burden imposed on the public authority by the request.

The reason given by the Council in its email dated 1 August 2024 for refusing the request was “the number of questions and departments involved in your request would cause the council undue stress and be a burden on our time and resources”.

The Decision Notice at paragraph 26 summarises the Council’s submission as to the volume of correspondence it received from Mr Owen during a two-year period in connection with the subject matter of the request as follows (some of these numbers are disputed by Mr Owen):

“During a 2 year period, the Council has received approximately 122 electronic contacts from the complainant on the matter, which has resulted in significant work for officers, including 208 emails sent between officers to determine responses, and approximately 81 email replies from the Council to the complainant. This includes 5 information requests made in the financial year 2023-2024, and 3 information requests made in the financial year 2024-2025.

This request (Council reference 68557) is a continuation of an earlier request (Council reference 68114) relating to the same meeting, to which the Council disclosed some information, and confirmed that some was not held. The majority of the information sought by this request is not held, with the exception of some information which is already publicly available. “

In his Grounds of Appeal, Mr Owen at section 1 outlines the history of his requests to the Council for the subject matter of the request, including an earlier request for information made on 6 January 2024. He provides detailed analysis, including tables, which demonstrate that he made 5 information requests and that the numbers of communication set out by the Council include both their responses to him and internal communications to enable the Council to respond.

Taking into account the comments of the UT in Dransfield, we were not satisfied that this part of the test was met. The Council has not provided adequate evidence to demonstrate that the responses would cause “undue stress and be a burden on our time and resources”. Indeed, it notes that its planning officers are accustomed to receiving extensive correspondence from interested parties in relation to planning decisions. We were more persuaded by Mr Owen’s submissions, because of the detail in which he analysed the communications concerned and, in particular, because a substantial number of the communications would have been exchanged during the planning application phases, when the Council could expect to be responding to queries and issues raised in representations in any event.

The motive of the requester.

In paragraph 36 of the Decision Notice, the IC states that “the context that this request has been made in strongly suggests to the Commissioner that it has been made to force continued engagement by the Council on a closed matter which has already been subject to significant scrutiny and transparency.”

In his Grounds of Appeal, Mr Owen stated that “my motive in making the request is to obtain openness and transparency about a private meeting that was the reason why the decision to refuse a planning application in which the local authority making the decision had a significant financial interest”.

We accept that Mr Owen’s motive was to seek transparency about an issue on which he felt strongly. However, we consider it an important factor that the Council had a significant financial interest in the transaction and that it stood to benefit financially from the planning application proceeding. In our view, this supports Mr Owen’s position that his motive was ensuring transparency rather than trying to force the issue to remain open. We were therefore not satisfied that this part of the test was met.

The value or serious purpose.

Paragraph 6.6 of the Grounds of Appeal states “I have a genuine and legitimate reason for seeking access to the requested information which is to obtain the openness and transparency over a planning committee decision that public standards require. If the council can hold private meeting to determine planning applications, it is failing in this respect and the FOIA/EIR is potentially the only way in which the public can hold the Council to account. My request therefore has value and a serious purpose.”

Paragraph 26 of the Decision Notice summarises the Council’s position as follows: “All legal avenues to change the planning decision have now been exhausted and responding to this request would not serve any purpose or support the public interest. There is no inherent purpose to the request as the planning decision cannot be changed; the development is now under way and the continued correspondence is depleting the Council’s resources.”

The IC recognised at paragraph 30 of the Decision Notice that “the planning permission for 121 new homes at Rose Hill Rise) is a contentious one within the local community, and the development will have a significant impact on the local area. In such a context, there is a strong public interest that there is appropriate transparency by the Council, so that the public can understand its decision making process”.

However, he also goes on to note “There is no evidence available to the Commissioner that suggests that the Council has not already sought to demonstrate transparency about this matter, whether through the planning process or its responses to previous information requests”. He also notes that while correspondence between Mr Owen and the Council was ongoing “the planning application had been allowed by both the Council and Planning Inspectorate, and has been the subject of a Judicial Review, which found the Council had acted lawfully in the planning process”.

We accept that there had been some attempts by the Council to demonstrate transparency. However, in our view the public interest in the planning decision is significantly increased because of the fact that the Council stood to benefit financially from the planning application proceeding as a result of its interest in the land. In our view transparency about this aspect is a clear benefit to the public which merits the use of public resources and we disagreed with the IC that the public value of the request was limited simply because the planning application was granted. On balance of probabilities, we considered therefore that this part of the test was not met.

Any harassment of, or distress caused to, the public authority’s staff.

At paragraph 26 of the Decision Notice, the IC summarises the impact on the Council’s staff, as reported by the council as “whilst planning officers are used to dealing with objections and opposition to planning consents, the complainant’s correspondence has caused significant volumes of work and stress to planning officers”.

At paragraph 6.7 of the Grounds of Appeal Mr Owen says “My communications with the Council have not been intended to cause harassment or distress or are likely to have caused such an impact. My communications with the council have been polite and respectful and dealt with specific issues or queries. Justified persistence in attempting to obtain information about a meeting which the Council has been reluctant to provide information on and which it has not been transparent about, and which determined the outcome of a planning application in which the Council had a financial interest should not reasonably be considered harassment.

The UT decision in Dransfield makes it clear that this element is not necessary in order for a request to be vexatious. On balance of probabilities, we consider there is insufficient evidence to demonstrate that there has been harassment of or distress to the Council’s staff.

In summary, we consider that none of the limbs in the test in Dransfield are met, and that accordingly the Council was not entitled to rely the request being vexatious and/or manifestly unreasonable to refuse to comply with it. This means that the Council is not able to rely on section 14(1) of FOIA for those parts of the request which fall under FOIA to refuse the request on the basis it was vexatious or on Regulation 12(4)(b) to refuse those parts of the request which fall under EIR as being manifestly unreasonable. Accordingly, we consider that the IC’s Decision Notice was not made in accordance with the law and allow the appeal.