John Parker v Information Commissioner

Mode of hearing

1.The proceedings were held by video (CVP). The Appellant joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

Background to Appeal

2.This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 6 February 2025 (IC-316287-F2N4, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”) or the Environmental Information Regulations 2004 (“EIR”). It concerns information about the departure of senior staff requested from Tendring District Council (the “Council”).

3.On 10 May 2024, the Appellant wrote to the Council and requested the following information (the “Request”):

“Please provide the following Freedom of Environmental information.

I would like to receive the recorded information by email as attachments of original documents.

The information I request is that regarding the planning application 21/01397/FUL.

1.Information regarding the departure of the Head of Planning Catherine Bicknell and Assistant Director Planning Service Graham Nourse

2.Any information regarding changes to planning directors / heads of planning and those authorised to grant delegated responsibility for the period from when TDC became aware of plans to development land EX828567

3.Information regarding the authorisation of Mr Pateman-Gee to act as delegated authority to approve application 21/01397/FU”

4.The Council initially responded under EIR and provided a summary of the requested information. After internal review they provided a new response which refused parts 1 and 2 under regulations 12(3) and 13 EIR, and provided a single document for part 3. This document is headed “Interim Amendment to Delegated Powers”, signed by Gary Guiver (Acting Director, Planning) and has a handwritten date of 10 October 2022 (the “Interim Amendment”).

5.During the Commissioner’s investigation, the Council provided a revised response on 19 December 2024. They stated that it was incorrect to refuse the requested information under EIR and that they were now issuing a refusal under FOIA. The Council responded to part 1 of the Request by providing a summary of its records containing the dates of when the named member of staff left the Council. For part 2 of the request, the Council advised that information is available online within the Council’s Constitution. The Council also provided a summary of its records containing the names and dates of when staff left the Council and the names and dates of individuals appointed to roles within planning. For parts 1 and 2 of the Request, the Council stated that it did not hold any email trails regarding reasons for heads of planning and directors leaving. The Council confirmed that it did hold two documents that fall within scope of part 1 and 2 of the Request, but withheld this information under section 40(2) FOIA (personal information).

6.The Appellant initially complained to the Commissioner on 26 June 2024. The Commissioner decided:

a.

The requested information was not environmental and so was correctly handled under FOIA.

b.

The Council was entitled to rely on section 40(2) of FOIA to withhold the two documents.

i.

This was personal data as it contains information about two former employees of the Council and their departure.

ii.

Processing through disclosure under FOIA would not be lawful.

iii.

There was a legitimate interest in understanding why senior staff left the Council, as the delegated powers afforded to senior staff involved in the decision have raised concerns around the planning decision which directly impacts the Appellant as well as others in the community. Disclosure is necessary for this purpose.

iv.

However, there is insufficient legitimate interest to outweigh the data subject’s fundamental rights and freedoms. The documents being withheld contain the reasons for why the individuals left their employment, they would have a reasonable expectation this would not be disclosed to the world at large under FOIA, and disclosure would cause those individuals harm or distress.

c.

The Council breached section 1(1)(b) FOIA by not communicating all information held within scope of part 2 of the Request, but on the balance of probabilities they did not hold any further information within the scope of part 3.

The Appeal and Responses

7.The Appellant appealed on 17 March 2025. His grounds of appeal are:

a.

The requested information is covered by EIR 2(1)(c), not FOIA.

b.

Disclosure of the withheld personal information would be lawful, fair and transparent. He has legitimate interests in disclosure, and the balancing exercise is in the public interest for disclosure. He says that it is clear from information publicly available that the Council became dysfunctional following these resignations which has led to unauthorised approval of matters of planning concerning the environment, and because of that it is in the public interest to understand why they left.

c.

The Commission failed to investigate in a timely manner his evidence that the Counsil had altered documents to prevent disclosure.

d.

The Council breached his rights under the Aarhus Convention.

e.

The Commissioner failed to uphold his rights within a reasonable time, and his application that the Council has altered a document was made on 26 June 2024 so was not out of time.

8.The Commissioner’s response maintains that the Decision Notice was correct.

a.

The correct regime is FOIA. The documents in scope relate to the leaving of senior staff from their employment at the Council. These documents are therefore too remote to be considered environmental information falling within the scope of EIR.

b.

Section 40(2) is subject to a different balancing test from the public interest test, and it is commonly accepted by the Tribunal that information relating to an employee’s termination of employment is rightfully withheld under this section.

c.

The Commissioner’s obligations under section 77 FOIA (relating to the allegation of altered documents) are outside the scope of the Tribunal. In addition, the Commissioner’s Criminal Investigation team considered his referral twice, and rejected it both times, for reasons that are outside the scope of this Tribunal and have been explained in detail to the Appellant under separate cover.

d.

The allegations of breach of the Aarhus Convention are irrelevant as FOIA is the correct regime.

9.The Appellant submitted a detailed reply. In summary, his position is:

a.

EIR not FOIA applied. The Commissioner failed to recognise that the scheme of delegation is itself an environmental measure, and if this was breached, any information explaining that breach (including resignation reasons) is EIR. The resignation reasons are not remote personnel matters but are inextricably linked to a constitutional vacuum for the Head of Planning position for more than 3 years and the unauthorised approval of planning applications (a "measure or activity" under the EIR). This makes the information a core environmental governance issue.

b.

The Council provided a manipulated or backdated record, a 2024 filename with a 2022 signature. (This refers to the Interim Amendment that was disclosed in response to part 3 of the Request).

c.

The strong public interest in exposing potentially unlawful planning decisions and ensuring transparency in local government overrides any personal data exemptions used by the Council under FOIA s40 or EIR.

d.

He seeks a finding from the Tribunal that the Council did not hold the Interim Amendment at the time of the request and created the document retrospectively, which constitutes a breach of regulation 12(4)(a) EIR.

Applicable law

10.The relevant provisions of FOIA are as follows.

1 General right of access to information held by public authorities.

(1)Any person making a request for information to a public authority is entitled— (a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b)

if that is the case, to have that information communicated to him.

(…)

40Personal information.

(1)Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.

(2)Any information to which a request for information relates is also exempt information if – (a)

it constitutes personal data which do not fall within subsection (1), and (b)

the first, second or third condition below is satisfied.

(3A)The first condition is that the disclosure of the information to a member of the public otherwise than under this Act —

(a) would contravene any of the data protection principles…

(…)

58 Determination of appeals

(1)If on an appeal under section 57 the Tribunal considers— (a)

that the notice against which the appeal is brought is not in accordance with the law, or (b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

11.The relevant provisions of EIR are as follows.

2(1) …“environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on— (a)

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b)

factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c)

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

……

5(1) …a public authority that holds environmental information shall make it available on request.

……

12(2) A public authority shall apply a presumption in favour of disclosure.

12(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.

……

13(1) To the extent that the information requested includes personal data of which the applicant is not the data subject, a public authority must not disclose the personal data if — (a) the first condition is satisfied…

……

13(2A) The first condition is that the disclosure of the information to a member of the public otherwise than under these Regulations — (a) would contravene any of the data protection principles…

12.Requests for environmental information are expressly excluded from the Freedom of Information Act 2000 (“FOIA”) in section 39 and must be dealt with under EIR, and it is well established that “environmental information” is to be given a broad meaning in accordance with the purpose of the underlying Directive 2004/4/EC.

13.The definition was explained by the Court of Justice of the European Union in Case C-316/01

Glawischnig v Bundesminister fur soziale Sicherheit und Generationen [2003] All ER (D) 145 as follows: “ The Community legislature’s intention was to make the concept of information relating to the environment defined in Article 2(a) of Directive 90/313 a broad one, and it avoided giving that concept a definition which could have had the effect of excluding from the scope of that directive any of the activities engaged in by the public authorities ... Directive 90/313 is not intended, however, to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned in Article 2(a). To be covered by the right of access it establishes, such information must fall within one or more of the three categories set out in that provision.”

14.The definition was considered by the Court of Appeal (CA) in Department for Business, Energy and Industrial Strategy v Henney and ICO

[2017] EWCA Civ 844 .

a.

The Regulations, the Directive, and the Aarhus Convention “are to be construed purposively. Determining on which side of the line information falls will be fact and context-specific .”

b.

The CA went on to provide some general guidance. The CA used as a starting point the recitals to the Aarhus Convention and the Directive – “ They refer to the requirement that citizens have access to information to enable them to participate in environmental decision-making more effectively, and the contribution of access to a greater awareness of environmental matters, and eventually, to a better environment. They give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure .”

c.

The CA went on to say that it is permissible to look beyond what the information is directly or immediately concerned with: “… identifying the measure that the disputed information is ‘on’ may require consideration of the wider context, and is not strictly limited to the precise issue with which the information is concerned ... It may be relevant to consider the purpose for which the information was produced, how important the information is to that purpose, how it is to be used, and whether access to it would enable the public to be informed about, or to participate in, decision-making in a better way. None of those matters may be apparent on the face of the information itself. ”

d.

At paragraph 52 of its judgment, the CA warned against an “ overly expansive reading that sweeps in information which on no reasonable construction can be said to fall within the terms of the statutory definition .”

15.The Upper Tribunal in Department for Transport v Information Commissioner and Cieslik [2018] UKUT 127 (AAC) , put the point as follows: “… the principle established by the Court of Appeal in Henney and in Glawischnig [is] that information which has only a minimal connection with the environment is not environmental information. The principle must apply not only in deciding whether information is on an environmental matter but whether a measure or activity has the requisite environmental effect. ”

16.Section 3(2) of the Data Protection Act 2018 (“DPA”) defines “personal data” as “ any information relating to an identified or identifiable living individual ”. The “processing” of such information includes “ disclosure by transmission, dissemination or otherwise making available” ( s.3(4) (d) DPA), and so includes disclosure under FOIA.

17.The data protection principles are those set out in Article 5(1) of the UK General Data Protection Regulation (“UK GDPR”), and section 34(1) DPA. The first data protection principle under Article 5(1)(a) UK GDPR is that personal data shall be:

“ processed lawfully, fairly and in a transparent manner in relation to the data subject”.

To be lawful, the processing must meet one of the conditions for lawful processing listed in Article 6(1) UK GDPR. These where “ processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child

.” (Article 6(1)(f)). The UK GDPR goes on to state that this condition shall not apply to processing carried out by public authorities in the performance of their tasks, but section 40(8) FOIA omits this provision, meaning that Article 6(1)(f) can be used as a lawful basis for the disclosure of personal data under FOIA.

18.The balancing of interests test under Article 6(1)(f) involves consideration of three questions (as set out by Lady Hale DP in South Lanarkshire Council v Scottish Information Commissioner

[2013] UKSC 55 ):

(i)

Is the data controller or third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?

(ii)

Is the processing involved necessary for the purposes of those interests?

(iii)

Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?

The wording of question (iii) is taken from the Data Protection Act 1998 , which is now replaced by the DPA and UK GDPR. This should now reflect the words used in the UK GDPR – whether such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data.

Issues and evidence

19.The issues are:

a.

Does FOIA or EIR apply to the Request?

b.

Was the Council entitled to withhold the two documents within parts 1 and 2 of the Request under section 40(2) FOIA or 12(3) EIR?

i.

Is the data controller or third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?

ii.

Is the processing involved necessary for the purposes of those interests?

iii.

Are such interests overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data?

c.

Was the Interim Amendment document that was disclosed under part 3 of the Request not, in fact, held by the Council at the time of the Request? As discussed below, we do not consider that this is an issue within the scope of the Tribunal’s powers.

20.By way of evidence and submissions we had the following, all of which we have taken into account in making our decision:

a.

An agreed bundle of open documents.

b.

A closed bundle of documents containing unredacted versions of correspondence between the Council and Commissioner (redacted versions of which are in the open bundle), and a summary of the information contained in the two withheld documents.

c.

Supplemental bundle parts I and II from the Appellant.

d.

Witness statement from the Appellant.

e.

Skeleton argument from the Appellant.

f.

Supplemental note from Appellant.

21.The Appellant has made various applications for disclosure of a Xerox printer/scanner audit log file from the Council, and for the Council to be joined as a party to the appeal and required to provide witness statements, which have been refused by the Tribunal.

22.Following the oral hearing, the Tribunal directed the Council to provide full copies of the withheld information to the Tribunal and the Information Commissioner, to be held subject to a direction under Rule 14(6) (so not disclosed to the Appellant or the public). The Council provided these documents on 4 August 2026. As set out in my directions of 20 July 2026, this information is held subject to a direction under Rule 14(6) that it will not be disclosed to anyone except the Information Commissioner.

Discussion and Conclusions

23.In accordance with section 58 of FOIA (which also applies to appeals under EIR, in accordance with regulation 18), our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. The Tribunal’s jurisdiction is limited to issues that are actually dealt with in the Decision Notice. As set out in section 58(2), we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision. We deal in turn with the issues.

24.Does FOIA or EIR apply to the Request? The Commissioner takes the position that the withheld information is personal in nature and too remote to be considered environmental information under EIR, as it relates to the leaving of senior staff from their employment at the Council. The Appellant says that the Commissioner made a factual error, and EIR applies. He says that the constitutional scheme of delegation 3+ year gap, the (alleged) unauthorised decision-making, and the alleged fraudulent record of delegated authority are all "measures and activities" directly affecting planning (land use, emissions, etc.), which falls squarely within the scope of the EIR.

25.The Appellant’s skeleton argument and oral submissions urged the Tribunal to inspect the withheld information in order to decide this issue. The closed bundle contains a summary of the withheld information, but not the information itself. The Tribunal panel agrees with the Appellant’s point. The Commissioner had asked the Council whether the information relates to the individual’s public life or private life, and the Council’s answer was “a mixture of both” (page B235 open bundle). There is some additional explanation in the next sentence which has been redacted in the open bundle (which we have seen in the closed bundle). However, it is possible that the information relating to the individual’s public life may be sufficiently connected to measures affecting the environment to fall within EIR. The Tribunal could not make this assessment without seeing the withheld information. We therefore ordered disclosure of the withheld information as set out above.

26.Having considered the withheld information, we find that the applicable regime is FOIA. This is because the information is personal in nature. It relates to two employees of the Council and their departure from that employment. We have considered the Appellant’s point that the scheme of delegation is itself an environmental measure, and so any information explaining a breach of that delegation, such as resignation reasons, is environmental information under EIR. We accept that this could be the case. For example, if an individual’s resignation letter made serious allegations about breaches of planning law, that may well be information “on” the environment within the meaning of the tests set out above. As set out in Henney

, determining on which side of the line information falls will be fact and context specific. Our assessment of the withheld information is that it has only a minimal connection with the environment (as described in Department for Transport v Information Commissioner and Cieslik

). It concerns the personal employment circumstances of two former Council employees. Any connection with environmental matters arises only from the wider context relied upon by the Appellant and not from the content of the withheld information itself.

27.We also note that it would make no difference to our decision if the information was to be considered under EIR, as explained below.

28.Was the Council entitled to withhold the two documents within parts 1 and 2 of the Request under section 40(2) FOIA or 12(3) EIR? The Appellant does not dispute that the withheld information will contain personal data. We have considered whether disclosure of this personal data under FOIA or EIR would be lawful under UK GDPR, and in particular the legitimate interest test.

29.Is the data controller or third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?

The Commissioner accepted in the Decision Notice that there are legitimate interests in disclosure - it would demonstrate that the Council is working in an open and transparent manner, and there is a legitimate interest regarding the expenditure of public money and the performance of public authorities.

The Commissioner also accepted that, to the complainant, he has a legitimate interest in understanding why senior staff left the Council as the delegated powers afforded to senior staff involved in the decision have raised concerns around the planning decision which directly impacts himself as well as others in the community.

30.We have considered the information from the Appellant about why he is seeking this information. We understand that the Appellant owns a property on land that was subject to a section 106 development restriction of no more than 98 houses. The Head of Planning at the Council resigned in April 2020, and was not replaced until August 2023. In February 2023 a major planning application was approved which failed to enforce the section 106 agreement. The Appellant believes this occurred during a period when there had not been proper delegation, and would not have happened if the original Head of Planning had not resigned. He says that information about why the Head of Planning and Assistant Director Planning Service left the Council is relevant to the interests in what subsequently happened. We accept that the Appellant has a personal legitimate interest in this information, and it is also a legitimate interest of the community of property owners on the affected land.

31.Is the processing involved necessary for the purposes of those interests? The Commissioner was satisfied in the Decision Notice that the Appellant is wanting to understand why the individuals left the Council, and in order to service this interest it would be necessary for the information to be disclosed. We agree that the processing of personal data through disclosure is necessary for the purposes of the interests identified above.

32.Are such interests overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data? The two documents that have been withheld contain some information about why two individuals left employment and the circumstances of their departure. This is clearly very personal information. An individual would have a reasonable expectation that this information would not be disclosed to the world at large under either FOIA or EIR. These were senior individuals in a public authority, so they may expect some information about the fact of their departure to be publicly available. However, this is very different from personal reasons for leaving employment. The Appellant does acknowledge this point. He says he is not asking for personal reasons for leaving, but he is asking for anything that relates to their public life and work at the Council.

33.Having now seen the full content of the withheld information, we can confirm that any reasons for leaving contained in those documents are personal ones. There is no information about the individuals’ public life and work at the Council that would create a strong legitimate interest in disclosure. The withheld information does not cast any light on what happened at the Council after they had left. We therefore find that any legitimate interests in disclosure are overridden by the privacy rights of those individuals, in circumstances where there had a clear reasonable expectation that this information would not be disclosed publicly under FOIA or EIR. This means that disclosure of the withheld information would not be lawful under the UK GDPR. Disclosure would breach the data protection principles, and so the withheld information is exempt from disclosure under section 40(2) FOIA.

34.After the hearing, the Appellant provided some financial information about exit packages at the Council, and asked us to cross-refer these figures in order to “ evaluate whether public funds were deployed to enforce non-disclosure agreements regarding possible governance / Section 106 failures ”. We can confirm that we have seen no evidence that this occurred based on the two documents we have seen.

35.The Appellant has said that it would be in the public interest to understand why these individuals left the Council. This may be relevant to whether there are legitimate interests in disclosure of the information under the UK GDPR. However, the UK GDPR analysis is not the same as the public interest balancing test that applies to much of FOIA and EIR.

36.We note that the exemption under section 40(2) FOIA and the exception under regulation 13(1) EIR use the same test – whether disclosure other than under FOIA/EIR would contravene any of the data protection principles. The analysis is therefore the same whether FOIA or EIR applies. The difference is that EIR applies a presumption of disclosure, which is relevant to any balancing test as to whether information should be disclosed. However, a public authority is still unable to disclose information under EIR if this would breach an individual’s data protection rights. If we find that disclosure would breach any of the data protection principles, the withheld information must not be disclosed under EIR.

37.We have found that disclosure of the withheld information would breach the data protection principles, and this means it cannot be disclosed under either FOIA or EIR. We therefore find that the Council was entitled to withhold the two documents within parts 1 and 2 of the Request under section 40(2) FOIA, or under 13(1) EIR if those regulations applied.

38.Was the Interim Amendment document that was disclosed under part 3 of the Request not, in fact, held by the Council at the time of the Request? The Appellant argues that this document has been fabricated and backdated by the Council, using some detailed analysis of metadata. This can be summarised as follows:

a.

The original disclosure was a PDF with the title “ EIR - #2024-356.pdf”, but the document properties stated that it was created on 10/10/2022 at 16:45:16.

b.

A second version was disclosed with file name “Interim Amendment to Delegated Powers.pdf ”, the same creation date and time, but showing as modified on 19/12/2024 at 16:14:57.

c.

Both documents were created using a Xerox WorkCentre 7855 machine.

d.

Metadata analysis of the creation date shows a record that has two timezone markers. The Appellant says that this would not be created by the Xerox machine, and must have been overwritten by a human operator using a Hex Editor.

e.

The Appellant alleges that someone at the Council created the Interim Amendment document after receipt of his Request in 2024, arranged for this to be signed and dated 10 October 2022, scanned it in using the Xerox machine, and then manually altered the creation date to make it look like it was scanned in 2022.

39.We have considered whether this is a matter that we are required to decide under section 58 FOIA, and have decided that it is not. The Information Commissioner found that no further information was held under part 3 of the Request, except for the Interim Amendment document. The Appellant does not challenge this finding. Instead, he alleges that the document that was disclosed to him is a fabrication. This Tribunal does regularly consider whether further information is held within the scope of a freedom of information request. However, a public authority is not obliged under FOIA to keep accurate or complete records, or to keep its records in an organised manner, and so this Tribunal does not generally consider what information should or should not have been held by a public authority. See for example, Councillor Jeremy Clyne v IC and London Borough of Lambeth

(EA/2011/0190), which held that the “ issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained

” (paragraph 38). If the Appellant is right that the Interim Amendment document was created later than 2022, the Council would not be in breach of FOIA or EIR by failing to keep a signed record of amendment to delegated powers.

40.We understand that the Appellant feels strongly about this issue. We also understand that he has attempted to make a complaint to the Commissioner about a criminal offence under section 77 FOIA. This was originally rejected for being out of time. This response was reviewed, and we have seen internal correspondence in the Appellant’s supplemental bundle that acknowledges this response was incorrect. On 9 July 2025 the Commissioner provided a new explanation from the Criminal Investigations Team. This said that the matter was not progressed for investigation because the passage of time meant the likelihood of the machine still holding this data is reduced and may now have been overwritten, and there is no additional evidence to support that the internal clocks have been changed. We accept the Appellant’s point that it was not strictly accurate for the Commissioner to say in paragraph 13 of the response to the appeal that the referral had been considered and rejected twice, because the first rejection was not legally correct. However, this Tribunal has no jurisdiction to consider an appeal against a decision not to further investigate any alleged criminal offence under section 77 FOIA.

41.We dismiss the appeal for the reasons explained above.

Signed: Judge Oliver Date: 1 September 2026