First-tier Tribunal (General Regulatory Chamber)

Neutral citation number: [2025] UKFTT 375 (GRC)

 Case Reference: FT/EA/2024/0318

First-tier Tribunal

(General Regulatory Chamber)

Information Rights

Heard by Cloud Video Platform

Heard on: 28 February 2025

Decision given on: 02/04/2025

Before

 

JUDGE S. BUCKLEY

MEMBER D. SIVERS

MEMBER R. EDWARDS

 

Between

 

Caroline shah

Appellant

and

 

INFORMATION COMMISSIONER

 

Respondent

Representation:

For the Appellant: In person

For the Respondent: Did not appear

 

Decision: The appeal is allowed in part.

 

Substituted Decision Notice:

 

Organisation: the London Borough of Richmond upon Thames

 

Complainant: Caroline Shah

 

The Substitute Decision IC – 294356- W9H1

For the reasons set out below:  

1.      The public authority was entitled to rely on regulation 12(4)(b) of the Environmental Information Regulations 2014 (EIR) to refuse the request.

 

2.      The public authority was in breach of its duty to provide advice and assistance under regulation 9 EIR.

 

3.      The public authority is not ordered to take any steps.

 

 

REASONS

 

1.      This is an appeal by Ms Shah against the Commissioner's decision notice IC-294356- W9H1 of 22 July 2024 which held that the London Borough of Richmond upon Thames (the Council) was entitled to rely on section 12(4)(b) of the Environmental Information Regulations 2004 (manifestly unreasonable request) to refuse the request for information.

Factual background

2.      Some of this factual background is taken from publicly available documents on the Council's website.

3.      This appeal arises out of the Habitats Regulation Assessment (HRA) of the Council's draft Local Plan. The draft Local Plan is intended to replace the existing Local Plan, adopted in 2018, to reflect changes to national planning policy. A Local Plan is intended to set out the policies and guidance for the development of the borough and the Council's proposed visions, objectives and spatial strategy.

4.      There is a requirement under the Conservation of Habitats and Species Regulations 2017 to carry out a HRA of development plans. The overall purpose of a HRA is to conclude whether or not a proposal or policy, or whole development plan would adversely affect the integrity of a 'European Site' (as defined in legislation but including, for example, designated Special Areas of Conservation).  

5.      The HRA of development plans is carried out in stages. Before the full assessment is carried out, there is a screening assessment to identify the likely significant effects of the development plan.  

6.      In 2021 the Council appointed a third party to prepare a HRA of its emerging Local Plan. According to information publicly available on the Council's website, there have been two iterations of the HRA of the local plan (as at January 2025):

a.      HRA of the Pre-Publication Draft Richmond Upon Thames Local Plan (Regulation 18) dated November 2021 (The 2021 HRA)

b.      HRA of the Publication Richmond Upon Thames Local Plan (Regulation 19) dated April 2023 (the 2023 HRA) and updated in June 2024 (the June 2024 Update).

7.      The draft Local Plan was the subject of a public consultation which closed on 31 January 2022.

8.      Inspectors acting on behalf of the Secretary of State were appointed in February 2024 to examine the soundness of the Local Plan. The HRA June 2024 Update responded to consultation with Natural England in 2024. Examination hearings were held between June and July 2024. The updated June 2024 HRA was submitted to the Secretary of State for independent Examination in July 2024.

9.      A HRA Addendum was published in January 2025, setting out proposed modifications to the Local Plan, the reasons for proposing the changes and their implications to the HRA.

10.  Ms Shah is concerned that the information used in the HRA contained errors, specifically in relation to the Richmond Park Designated Special Area of Conservation.

11.  The JNCC (Joint Nature Conservation Committee) website records that the primary reason for the selection of Richmond Park as a Designated Special Area of Conservation is the stag beetle:

"Richmond Park has a large number of ancient trees with decaying timber. It is at the heart of the south London centre of distribution for stag beetle Lucanus cervus, and is a site of national importance for the conservation of the fauna of invertebrates associated with the decaying timber of ancient trees."

12.  The Richmond Park Special Area of Conservation was considered under the screening assessment but was screened out for further assessment.

13.  Ms Shah states that the factual basis for the screening out is inaccurate in a number of significant ways. For example she says that the following are inaccurate or incomplete:

a.      The HRA states that the habitat running parallel to the A308 from Kingston Gate to Isabella Plantation adjacent to Richmond Park is 'grassland' when it is heavily wooded.

b.      The HRA states that the stag beetle relies on 'dead wood' or 'dead wood located underground' whereas in fact the JNCC states that the stag beetle relies on the decaying wood of ancient trees. The description of the habitat as 'dead wood' ignores, Ms Shah says, the continuous cycle of growth decay and renewal that is encompassed within the JNCC formulation i.e. that it is the decaying wood of ancient trees that needs protecting in perpetuity.

c.       The HRA does not lay out available information on current levels or, and effects of, pollution on the stag beetle and its habitat.

d.     The HRA does not deal properly with the vulnerability of the stag beetle and ancient trees to recreational pressure.

e.      The levels of traffic on roads running through Richmond Park SAC.

f.        The in-combination effects of the policies of the Council's draft new Local Plan with other plans.

14.  The request arises out of Ms Shah's desire to gain a full picture of what Council Officers knew about the information used as the basis of the screening assessment. Ms Shah is interested to know if there is any correspondence that shows the Council were aware of or were made aware of any of these errors or checked the accuracy and completeness of the information presented in the two HRAs.  

The request and response

15.  Ms Shah requested the following information from the Council on 9 November 2023:

"1. Any and all formal responses by Natural England to any version of the draft Richmond Local Plan and which finished its Regulation 19 public consultation in the summer of 2023 ("the new Richmond Plan")?

2. Any and all formal responses by Natural England to any and all drafts of the Habitats Regulations Assessment of any and all of the draft versions of the new Richmond Plan?

3. Internal correspondence between any officers of Richmond Council relating in any way to the new Richmond Plan and any of the Habitats Regulations Assessments (" HRAs") of that plan?

4. Correspondence between any officers and councillors of Richmond Council and the authors of the HRA of the new Richmond Plan relating in any way to the new Richmond Plan and any of the HRAs of that plan?"

16.  On 6 December 2023 the Council provided some information but refused the remainder under regulation 12(4)(d). On internal review the Council revised its response and withheld the information under regulation 12(4)(b).

Decision notice

17.  In a decision notice dated 22 July 2024 the Commissioner upheld the Council's reliance on regulation 12(4)(b).  

18.  The Commissioner accepted that the Council's estimate of between 53-106 hours to retrieve, review and redact 12,814 pages was reasonable and that the Council has used appropriate search terms and locations to retrieve the requested information.

19.  The Commissioner accepted that complying with the request would clearly far exceed the time limit of 18 hours under FOIA and the Commissioner accepted that this was not a reasonable use of Council officers' time. The Commissioner acknowledged that there is no cost limit applicable in this case, but noted that compliance would have significant cost implications. He held that complying with the request would also likely cause a disproportionate burden on the Council's resources in terms of time and cost, as well as an unjustified level of disruption to the department.

20.  Taking into account the significant burden of complying with the request, the Commissioner's view was that the public interest favoured maintaining the exception.

Grounds of appeal

21.  The grounds of appeal are, in essence, that the Commissioner erred in overstating the burden imposed on the Council and in understating the serious purpose and value of the request and the public interest in disclosure.  

The Commissioner's response

22.  The Commissioner noted that the estimate did not include other information identified by the Council as potentially within the scope of the request, including 200 emails from the email account of one member of staff and any emails that could potentially be held in the email accounts of 10 other members of staff. It was limited to 85 documents held in the Richmond Local Plan SharePoint file.

23.  The Commissioner submits that the search terms used by the Council were appropriate and that it would be wrong for the Council to decide its own time parameters in the absence of a timeframe in the request.

24.  The Commissioner remained satisfied that there was a manifestly unreasonable burden being placed on the Council.

25.  In relation to the public interest the Commissioner maintained that, given the burden of the request, the public interest favoured withholding the information.

26.  The Commissioner argued that it was permissible to take account of the time it would take to redact material under section 14 FOIA or regulation 12(4)(b) EIR.

27.  The Commissioner said that he did not incorporate Ms Shah's complaints about regulation 9 EIR into his investigation and therefore it was not included in the decision notice. The Commissioner noted that the Council did consider its duty under regulation 9 and invited the tribunal to join the Council as a party if it had questions for the Council about regulation 9.

Ms Shah's reply

28.  Ms Shah submitted a detailed reply of 98 pages, addressing each paragraph of the Commissioner's response. Whilst we have read and taken account of all the matters raised in that reply, where relevant to the matters we have to determine, it is not proportionate to summarise the reply in this decision.

29.  Ms Shah raises the following points in favour of disclosure:

a.      No public information exists of whether, when and how the Council checked the information on which the screening assessments in the HRAs are based. Evidence to show how the Council assessed the accuracy and completeness of the information used in the screening assessments of Richmond Park SAC, and whether the Council was aware of any errors or omissions in this information needs to be published. Disclosure of internal communications would clear up any misconceptions and remove any suspicion that the Council did not properly scrutinise the information presented as fact. Any suspicion that the decision to approve a HRA without sufficient scrutiny would lead to a stronger public interest in disclosure. The lack of publicly available evidence that the Council has considered the HRAs is in breach of National Planning Policy Framework (NPPF) which states, "31. The preparation and review of all policies should be underpinned by relevant and up-to-date evidence."

b.       The Council has not completed a contents-based assessment of the withheld information before conducting the public interest balance.

c.       There is a general public interest in favour of disclosure of environmental information and a specific public interest in a sustainable environment. The Council has a duty to ensure that Richmond Park SAC receives appropriate protection from its new development plan. There is therefore significant public interest in the public of evidence showing whether, when and in what way the Council evaluated the information on which the conclusions of the HRA are based, to ensure that it paints a full picture of the protected species and its protected habitat.

d.     Richmond Park is the heart of England's habitat for the stag beetle. Richmond Park SAC contains a large number of ancient and veteran trees that are enjoyed by people from all over the United Kingdom and beyond. There are around 1,300 veteran trees in Richmond Park recorded on the Ancient Tree Inventory, and around 320 of these are ancient. One of the most impressive of these is the Royal Oak, which can be found near Pen Ponds Oak, and is estimated to be around 750 years old. The decision to screen out Richmond Park SAC based on incomplete, inaccurate and incorrect information will have a significant impact on the health and well-being of people from across London and beyond, as a result of the loss of protection of the ancient and veteran trees in Richmond Park SAC and the younger trees that will eventually replace them when these trees are valued only for the "dead wood" they generate while ignoring the continuous cycle of growth, decay and renewal that is encompassed within the formulation advanced by the JNCC, that it is the "decaying wood of ancient trees" that needs protection in perpetuity. There is therefore a significant public interest in disclosure in order to further debate on the features of the habitat of the stag beetle in Richmond Park SAC that must be protected by law as part of protection of a sustainable environment.

e.      Work on Richmond Council's Local Plan by the Council is substantially complete, undermining the assertion that the exemption is justified. This weighs heavily in favour of disclosure.

f.        The need for a full picture and the use of inaccurate, incorrect, incomplete and inconsistent information in the HRAs strengthens the public interest in disclosure. There is public interest in seeing a full, accurate and complete picture and allowing people to reach their own view. The Screening Assessments of Richmond Park SAC in the HRAs contain inaccurate, incorrect and incomplete information concerning the legally-protected stag beetle, the features of the habitat in Richmond Park SAC on which the stag beetle relies, the levels of and effects of pollution and recreational pressure on the stag beetle and its habitat, the nature of the habitat running parallel with the A308 in Kingston adjacent to Richmond Park, levels of traffic on roads running through Richmond Park SAC and the in-combination effects of the policies of the Council's draft new Local Plan with other plans and projects. The

g.      Without transparency in regard to whether, when and how the Council considered and approved the HRAs, there can be no possibility that the soundness and legal compliance of the HRA will be exposed and properly considered at Examination in Public of the Regulation 19 Plan. The scrutiny is based on comments made in response to the Regulation 19 consultation which will have been made on the basis of information that is not accurate or complete.

h.      There is a suspicion that the Council never considered the information in the HRAs when approving the Plans for consultation, because there is nothing in the public domain that shows if, when or how the Council considered or approved the information used, analysis of that information and conclusions made in the HRAs.

i.        Disclosure is needed to explain the basis on which the Council approved the HRAs when they contained significant errors, omission, inaccuracies and inconsistencies. Representations have been sought on and will have been guided by Plans that contain misleading information apparently endorsed as correct by the Council.  Further scrutiny as part of the plan making process does not bring any transparency or accountability to the decision making process in regard to consideration of the HRAs by the Council that has or has not previously taken place.

j.        There is no need for a safe space where the Council is establishing facts and checking and correcting errors.

30.  Ms Shah submitted that the Council had not complied with the duty to provide advice and assistance. The Council had not initially relied on regulation 12(1)(b) so that deprived her of the opportunity to narrow her request. She submitted that the request could have been limited by time and to information relating to Richmond Park or to emails to or from the main officer. The request could have been limited to either part 3 or part 4 of the request.

31.  In relation to the burden of the request, Ms Shah submitted that:

a.      The Council was wrong to include redaction and reviewing time in the time estimate.

b.      The Council should have carried out a time limited search, given that it was clear that the request related to the preparation of the HRAs of the Local Plan that finished Regulation 19 consultation in 2023.

c.       The Council should have estimated the time required to respond to parts 3 and 4 of the request separately.

d.     It is unreasonable to assume that each page of the 85 documents would need to be inspected. It is wrong to assume that 15-30 seconds would be needed to examine each page. Search functions can be used.

e.      The Council should have identified the information in the documents which was covered by the request, and conducted a contents-based assessment of that information before an estimate of the time to comply was calculated. This could have been done using the search terms 'Richmond Park' and 'stag beetle'.

f.        If the 300 emails came from the main officer working on the HRAs, it is likely that the other email accounts would hold less relevant emails and/or duplicates.

g.      The information request is for correspondence only and no information is given as to the nature or content of the 85 documents in the SharePoint file.

h.      It does not take 1.5 minutes to review an email.

i.        The burden is not disproportionate to the value of disclosing the information.

j.        There is no robust and clear evidence of the detrimental effect that complying with the request would have on the Council.

Further written submissions

32.  Ms Shah provided a supplementary bundle with a further 19 pages of written submissions. The tribunal has read and taken these into account.

Written submissions by the Council on regulation 9 (advice and assistance)

33.  The Council was ordered to provide written submissions on this issue by the tribunal and those submissions, dated 16 December 2024, are in the open bundle.

34.  The Council noted that in its internal review response it stated that it was unable to provide advice and assistance without undermining the comprehensive nature of the request. The Council submitted that it had considered the various ways in which the information request could be refined or narrowed but concluded that advice and assistance suggesting ways to refine or narrow the request would be unreasonable.

35.  The Council interpreted the information request as requiring all information relating to the HRAs. It stated that it was apparent that Ms Shah's request for an internal review was for a full picture of all drafts of the HRA held by the Council. The Council considered that suggesting a more restricted time period would undermine Ms Shah's expressed wish and extensive arguments that a comprehensive disclosure of all HRA iterations would give a complete picture of how the published versions of the HRA were compiled.

36.  The Council asserted that refining the request using the search terms 'stag beetle' and Richmond Park SAC' returned no results because the search function (presumably of the SharePoint file) only looks for the title of documents. To identify information relating to these terms the Council would have to search each page of every item which would take 53 hours.

Legal framework

37.  Council Directive 2003/4/EC on Public Access to Environmental Information ('the Directive') set out a regime for public access to environmental information held by public authorities in the Member States. It implemented the United Nations Economic Commission for Europe's (UN/ECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998 ('Aarhus').

38.  The importance of the obligation to provide access to environmental information is seen from the recitals to the Directive and the Aarhus Convention. The first recital to the Directive states that:

increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.

39.  The recitals to the Aarhus Convention include:

citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters

...

improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns.

40.  Regulation 2(3) of Aarhus defines environmental information as:

Any information in written, visual, aural, electronic or any other material form on:

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

Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision making;

The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment, or through these elements, by the factors, activities or measure referred to in subparagraph (b) above;

41.  Regulation 2(1) of the EIR defines environmental information as information 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;

...

42.  Regulation 12 EIR provides, insofar as relevant:

(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.

...

(4) For the purposes of paragraph 1(a), a public authority may refuse to disclose information to the extent that-

...

(b) the request is manifestly unreasonable.

 

43.  As the Court of Justice of the European Union ("CJEU") has said:

"The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal". (Office for Communications v Information Commissioner Case C-71/10 at paragraph 22).

44.  This is why the EIR is deliberately different from the Freedom of Information Act 2000 ("FOIA") in that all exceptions are subject to a public interest test and there is a presumption in favour of disclosure.

45.  The EIR do not contain an express obligation to interpret grounds for refusal in a restrictive way, but, given the obligation to interpret the EIR purposively in accordance with the Directive the overall result in practice ought to be the same: the grounds for refusal under the EIRs should be interpreted in a restrictive way (Vesco v (1) Information Commissioner and (2) Government Legal Department [2019] UKUT 247 (TCC))

46.  A three stage test applies, on the wording of Regulation 12:

1. Is the request manifestly unreasonable? (Regulation 12(1)(a))

2. If so, does the public interest in maintaining the exception outweigh the public interest in disclosing the information, in all the circumstances of the case? (Regulation 12(1)(b))

3. Does the presumption in favour of disclosure mean that the information should be disclosed? (Regulation 12(2))

47.  Under the first stage we must decide if the request is manifestly unreasonable. Authorities on "vexatiousness" under Section 14 of FOIA may be of assistance at this stage, because the tests for vexatiousness and manifest unreasonableness are similar (Craven v Information Commissioner and Department for Energy and Climate Change [2012] UKUT 442, and Craven/Dransfield v Information Commissioner [2015] 1 WLR 5316 at paragraph 78).

48.  The starting point is whether the request has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public, judged objectively (Dransfield v Information Commissioner [2015] 1 WLR 5316 at paragraph 68, Beggs v Information Commissioner 2019 SLT 173 paragraphs 26-29). The hurdle of satisfying the test is a high one.

49.  In considering manifest unreasonableness, it may be helpful to consider factors set out by the Upper Tribunal in Dransfield v Information Commissioner and Devon County Council [2012] UKUT 440 at paragraph 28. These are:

1) the burden (on the public authority and its staff), since one aim of the provision is to protect the resources of the public authority being squandered;

(2) the motive of the applicant - although no reason has to be given for the request, it has been found that motive may be relevant: for example a malicious motive may point to vexatiousness, but the absence of a malicious motive does not point to a request not being vexatious (Beggs, paragraph 33);

(3) the value or serious purpose of the request;

(4) the harassment or distress of staff.

50.  This is not an exhaustive checklist, and other factors that may be relevant are previous requests (including number, subject matter, breadth and pattern), whether they were to the same or a different body, the time lapse since the previous requests, and whether matters may have changed during that time. If, after applying the first stage of the test, the conclusion is that the request is not manifestly unreasonable, then the information requested should be disclosed (assuming no other exemptions apply).

51.  If it has been established that a request falling under the EIRs is manifestly unreasonable within Regulation 12(4)(b), that of itself is not a basis for refusing the request. We must then go on to the second stage, and apply the public interest test in Regulation 12(1)(b). Application of this test may result in an obligation to disclose, even if a request is manifestly unreasonable.

52.  The public interest test requires us to analyse the public interest. The starting point is the content of the information in question, and it is relevant to consider what specific harm might result from the disclosure (Export Credits Guarantee Department v Friends of the Earth [2008] EWHC 638 paragraphs 26-28). The public interest (or various interests) in disclosing and in withholding the information should be identified; these are "the values, policies and so on that give the public interests their significance" (O'Hanlon v Information Commissioner [2019] UKUT 34 at paragraph 15). "Which factors are relevant to determining what is in the public interest in any given case are usually wide and various", and will be informed by the statutory context (Willow v Information Commissioner and the Ministry of Justice [2018] AACR 7 paragraph 48)

53.  The statutory context includes the backdrop of the Directive and Aarhus discussed above, and the policy behind recovery of environmental information. Once the public interests in disclosing and withholding the information have been identified, then a balancing exercise must be carried out. If the public interest in disclosing is stronger than the public interest in withholding the information, then the information should be disclosed.

54.  If application of the first two stages has not resulted in disclosure, we must go on to consider the presumption in favour of disclosure under Regulation 12(2) of the EIRs. It was "common ground" in the case of Export Credits Guarantee Department v Friends of the Earth [2008] Env LR 40 at paragraph 24 that the presumption serves two purposes: (1) to provide the default position in the event that the interests are equally balanced and (2) to inform any decision that may be taken under the regulations.

The role of the tribunal

55.  The tribunal's remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner's decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

List of issues

56.  The issues for the tribunal are:

a.      Is the request manifestly unreasonable? (Regulation 12(1)(a))

b.      If so, does the public interest in maintaining the exception outweigh the public interest in disclosing the information, in all the circumstances of the case? (Regulation 12(1)(b))

c.       Does the presumption in favour of disclosure mean that the information should be disclosed? (Regulation 12(2))

d.     Did the Council comply with its duty to provide advice and assistance?

Evidence

57.  We read an open bundle and a supplementary open bundle. The bundle included a witness statement from Ms Shah which reiterated her arguments and which we have read and taken into account.

Skeleton arguments/oral submissions

58.  The Appellant submitted a detailed skeleton argument and made oral submissions to the tribunal. We considered all the points made by the Appellant, where they were relevant to the matters that the tribunal had to determine.

59.  In summary Ms Shah raised the following pertinent points.

Interpretation of the request/advice and assistance

60.  Ms Shah submitted that the Council had interpreted her request too broadly. She did not say that she wanted all the drafts of the HRAs. The request was for correspondence between specified groups of people, not for all information relating to the HRAs.

61.  Ms Shah submitted that she was denied the opportunity to refine her request because they did not initially rely on this exception. She was not given reasonable advice and assistance. It is not correct to say that the request could not be refined because she wanted all relevant information. She submitted that she had refined her request in her request for an internal review to relate only to Richmond Park.

Public interest in disclosure

62.  Ms Shah submitted that there was a serious purpose and motive in making the request and value in disclosure of the requested information.

63.  Ms Shah said that there is strong public interest in disclosure of information that shows whether officers were aware of, and their views on, information that could be materially incorrect and could affect the screening assessment. It is important to know whether officers believed there were errors and if so what they did or said about the errors and how they evaluated the information. Disclosure will reassure the public that there has been no wrongdoing and the public will understand how officers considered the information. She said this is important in terms of a sustainable environment because Richmond Park is important as a SAC.

64.  She submitted that there is no publicly available information that shows whether or not the Council checked the information on which the screening assessment was based. She argued that this casts doubt on whether the Council's decision making is robust and raises a suspicion of lack of scrutiny of third parties carrying out the Council's duties such as those instructed to carry out the assessment. Under the relevant legislation the public authority has to maintain proper supervision. She submitted that there was a breach of the National Planning Policy Framework which provides that the preparation and review of all policies should be underpinned by relevant and up-to-date evidence.

65.  Ms Shah submitted that this specific public interest in disclosure is not served by publishing the HRA itself. Nor is it served by the examination in public (EiP). Ms Shah attended the EiP and the issue of whether Officers were aware of errors in the screening assessment or how they evaluated the information used as a basis of the assessment was not discussed. Nor is it discussed in any reports or minutes of committees that approved the Local Plan.

66.  Ms Shah said the point is not about opportunities for further clarification now, the point is what Council officers knew at the time when the HRA screening assessment took place because that information was then used as the basis for consultation documents.

Burden

67.  Ms Shah said that the Council should have made a contents-based assessment of the information potentially in scope in accordance with Department of Health v IC & Lewis [2015] UKUT 159 (AAC) to determine if it contained correspondence that fell withing the scope of the request.

68.  Ms Shah submitted that:

a.      In the SharePoint file, any documents that are not emails or documents attached to emails are not within the scope of the request.

b.      Any attachments to emails that do not contain comments or questions are not within the scope of the request. This includes copies of various drafts of the HRAs.

c.       Duplicate documents should be disregarded.

d.     The Council should have applied a date range. The Council say that the HRA process started in 2020 and was completed in November 2023. Ms Shah notes that the regulation 19 local plan was approved on 24 April 2023 so there could be no changes after 24 April 2023.  

e.      The Council should have used a reasonable method for calculating the time needed to process the request. Ms Shah said that it does not take 15-30 seconds per page to search a large document for search terms. Using a search facility the entire document can be searched in seconds.

f.        The Council could have considered the burden of parts 3 and 4 separately.

g.      The Council should not have taken redaction time into account.

Discussion and conclusions

69.  In her written submissions Ms Shah makes a number of points about the Commissioner's process, investigations and reasoning in the Decision Notice. As the tribunal undertakes a full merits review those matters are outside our remit.

70.  We are considering parts 3 and 4 of the request. Looked at objectively in the light of the surrounding circumstances, the scope of the request is clearly limited to information contained in correspondence, either internal correspondence between officers or external correspondence between offices and councillors and the authors of the HRA.

71.  The term 'correspondence', in our view, naturally includes any documents included with or attached to that correspondence i.e. attachments to emails. Those documents form part of the correspondence. In our view any email that relates in any way to the new Richmond Plan and any of the HRAs would be in scope along with all of its attached documents, whatever the nature or content of those attached documents.

72.  Although limited to correspondence, it is otherwise a very broad request. It covers correspondence relating in any way to the new Richmond Plan and any of the HRAs of that plan. It is not limited in date, to particular individuals' email accounts or to specific topics such as the stag beetle habitat or Richmond Park.

73.  Although Ms Shah refers to having 'refined' her request at internal review stage, we are considering the request that was considered by the Commissioner in the Decision Notice i.e. the original wording of the request submitted in November 2023.

74.  We do not accept that it would have been legitimate for the Council to search only within the date bracket now proposed by Ms Shah. Although the regulation 19 Local Plan was approved on 24 April 2023 there could clearly be correspondence after that date relating 'in any way' to the new Richmond Plan and the HRAs. Further, there might have been the need for later updates to the HRA, as indeed there was in June 2024.

75.  We do not accept that it would have been legitimate for the Council to limit their search to correspondence containing the search terms Richmond Park or Stag Beetle. The scope of the request is much broader than that. Nor could the Council have limited the search to one email account.

76.  In considering the burden of the request, Ms Shah submitted that the Council could have assessed the burden of responding to parts 3 and 4 separately. We consider this further under advice and assistance below, but when considering the burden of responding to a request a public authority is entitled to rely on the burden of responding to the entire request.

77.  The Council carried out a sampling exercise by searching the email account of one officer involved with the work on the new Richmond Local Plan and the Habitats Regulations Assessment. The search terms used were "Habitats Regulation Assessment" "Habitats" "HRA" and "HRAs". This produced 300 email items. Given the breadth of the request we do not consider these to be unreasonable search terms.

78.  The Council also conducted a search of the Richmond Local Plan SharePoint file and has produced a list of 85 documents in the HRA folder. Some of those documents are not emails or attachments to emails and would not, we find, fall within the scope of the request. Time spent on those documents is not part of the time the public authority would reasonably be expected to incur responding to the request.

79.  The remainder of the documents in the SharePoint file are emails with attachments. They are stored in a HRA folder within the Richmond Local Plan SharePoint file.

80.  It is not necessary for a public authority when estimating the burden of complying with a request to carry out a 'contents based' assessment of all the documents potentially in scope. The case law relied on by Ms Shah relates to the requirement to take a contents-based approach to the public interest balance under FOIA. In our view all those emails and their attachments are at least potentially within scope of the request and it is reasonable to include them in an estimate of how long it would take to respond.

81.  We do not accept that the Council was required to discount any attachments or emails that had the same number of pages and/or are attached in both word and pdf on the basis that they must be duplicates. They may be the same base document but they may contain different annotations or comments or amendments to the base document.

82.  In total the tribunal has calculated that approximately 200 pages in the SharePoint file are emails (including emails attached to other emails). There are approximately 3680 pages that are word/pdf/other attachments to emails.

83.  We accept that the estimate of between 15 and 30 seconds (an average of 22.5 seconds) to skim read one page of a document is reasonable, but in our view it would be much quicker to skim read one page of an email. In our view a reasonable estimate of the time it would take to skim read one page of an email would be between 5 and 10 seconds (an average of 7.5 seconds) and to skim read a page of a document would be between 15 and 30 seconds This produces what is in our view a reasonable estimate of 25 minutes to review the emails and 23 hours to review the documents.

84.  In addition, there are 300 emails in the email account which in our view at least potentially fall within the scope of the request and need to be reviewed. Even assuming that those emails were all only one page long and contained no attachments, they would take an additional 37.5 minutes to review. There are also likely to be emails in other officer's email accounts that are within scope of the request, but we do not have sufficient information to allow for those in the estimate.

85.  In our view, 24 hours is a reasonable estimate of the time it would take just to skim read and review all the information potentially in scope of the request.

86.  The Council would then have to consider and carry out redactions of, for example, personal data.  Ms Shah submits that the Council is not entitled to include redaction time in the estimate of the burden of the request, but this is not a FOIA appeal and therefore the limitations under section 12 do not apply. For that reason we consider 24 hours to be a very conservative estimate of the minimum burden involved in responding to this request.

87.  This is a very significant burden for a Council which, like all Councils, has limited resources and other important duties. The costs limit in section 12 is not applicable in EIR cases, but it is a useful reference point. We do not treat it as determinative in any way, but we note that the costs limit implies that Parliament considered it was not desirable for Councils to spend more than 18 hours responding to a FOIA request, whatever the public interest in disclosure. This informs our view that 24 hours, 6 hours over that limit, is a very significant amount of time to spend on one request for information.

88.  There is no inappropriate motive or harassment present in this case. We accept that there is a serious purpose behind the request, and that the information requested would be of value both to the requestor and the public for the following reasons.

89.  We agree with Ms Shah that the requested information is likely to fall broadly within parts (a), (b) and (c) of the definition of environmental information in the EIR we accept that there is a strong public interest in transparency of decision making with a potential impact on Richmond Park, because of its status as a SAC. Publication of any information related to the Local Plan, the HRA and the assessment of the impact on Richmond Park will, in our view, contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.

90.  In terms of the specific public interest in the requested information, the tribunal does not need and, in any event, is not in a position to determine whether Ms Shah is correct in her assertion that the factual basis for the screening assessment in the HRA contains inaccuracies or is incomplete or defective in some other way.

91.  We accept that there is a very strong public interest in ensuring that the HRA is based on correct factual information, but that factual information is already publicly set out in the HRA and Ms Shah is already in a position to identify and has identified what she says are errors and draw them to the attention of the Council. The release of the requested information adds nothing to the public's ability to identify and challenge any substantive errors that have been made. If Ms Shah wanted to complain that the Council had allowed the HRA to be produced on the basis of incomplete or inaccurate factual information or that they have failed to exercise proper scrutiny, she can already do so without the requested information.

92.  We accept that there is also a clear public interest and value in transparency in the ways set out by Ms Shah, i.e. in relation to whether Council officers considered the matters raised by Ms Shah, and in relation to understanding the extent to which the factual basis for the screening assessment was scrutinised, and in relation to the level of oversight exercised by the Council, in accordance with its legislative duties, over the third party they made responsible for producing the HRA. We accept that disclosure has the potential to reassure the public that there has been no wrongdoing and to help the public will understand how officers considered the information.

93.  We also accept that this public interest has not been met by any documents already published and that it is unlikely to be met through the publication of minutes of committee meetings or through the examination in public.

94.  However, this is a very broad request, which captures vast quantities of information likely to be completely irrelevant to the specific information with which Ms Shah is concerned, and which is highly unlikely to serve the particular public interest highlighted above. As Ms Shah is acknowledged, many of the attachments to the emails in the SharePoint are likely to simply be different drafts of the HRA which will cast no light at all on the issues that she has raised. Many of the emails are unlikely to relate in any way to Richmond Park or to the habitat of the stag beetle.

95.  Looked at holistically we have concluded that the significant burden on the Council of answering this very broad request is grossly disproportionate to the value of the information to the public. On this basis we find that the request is manifestly unreasonable.

96.  We have considered whether the public interest in maintaining the exception outweighs the public interest in disclosing the information, in all the circumstances of the case. In doing so, we bear in mind the presumption in favour of disclosure. The resources of Councils are under pressure and limited. There is a strong public interest in protecting the resources of public bodies. Bearing in mind all the matters that we have set out above in relation to the value and purpose of the request, whilst we accept that there is a clear public interest in transparency it is unlikely to be served by the majority of documents in scope and, in our view, it is clearly outweighed by the public interest in maintaining the exception.

97.  As we have not determined that the public interests are balanced, the presumption does not tip the balance in favour of disclosure.

98.     We find the Council was entitled to rely on regulationn12(4)(b) to refuse the request.

99.    Although we have found that this broad request is manifestly unreasonable, in our view, it should be possible for Ms Shah to submit a much more focussed request that would dramatically reduce the number of documents in scope. For example, if she excluded attachments from her request and/or attachments over a certain number of pages and requested only the emails in the SharePoint file the burden on the Council would be reduced significantly. The Council is under a duty to consider each request on its own merits and cannot simply refuse any related requests as manifestly unreasonable, particularly if they are more focussed.

Duty to provide advice and assistance

100.               In our view, the Council could reasonably have suggested a number of ways to refine the request. It was not reasonable to interpret the correspondence from Ms Shah as indicating that she was interested in 'comprehensive disclosure of all HRA iterations' or 'a full picture of all HRA drafts held by the Council'. That is not what parts 3 and 4 of the request are focussed on, and Ms Shah makes clear in correspondence what she is interested in (as set out in the decision above).

101.               The Council could easily have suggested that the searches were limited to the main officer's email account, or to a particular time period (as Ms Shah suggests, perhaps up to 24 April 2023), or to the emails in the SharePoint file, or to emails without attachments.

102.               We reject the Council's assertion that it is not possible to search using the terms 'stag beetle' or 'Richmond Park SAC' without doing so page by page. It may not be possible to search the SharePoint as a whole for the terms within a document, but it is undoubtedly possible to carry out one search per document rather than one search per page. The tribunal anticipates that those search terms could also be used on the email accounts to search the body of the emails.

103.               Further, the Council could have considered whether the request might be less burdensome if limited to email correspondence with the authors of the HRA i.e. to just one part of the request.

104.               For those reasons we find that the Council was in breach of its duty under regulation 9 to provide advice and assistance, so far as it would be reasonable to expect the authority to do so.

105.               We have not ordered the Council to take any steps, because in our view Ms Shah now has sufficient information to submit a refined request. At that stage the Council should consider carefully their duty to provide advice and assistance if they still consider the request to be excessively burdensome.

 

Signed                                                                                  Date:

Sophie Buckley                                                                   28 March 2025