Holland v The Information Commissioner & Anor

Environmental information is held by a public authority under regulation 3(2)(a) only where it is in the authority’s possession and has been produced or received by that authority. Physical presence on the authority’s premises or computer systems is insufficient.

The question requires a factual assessment of the capacity in which the individual acted and whether production or receipt is attributable to the authority. Information produced or received by an employee in a personal or other independent capacity is not held by the authority merely because its facilities were used.

The appellant sought IPCC Working Group reports and related information from the University of Cambridge. Professor Wadhams, a University academic, had acted as an unpaid IPCC Review Editor following nomination by the Government.

The University and the Information Commissioner concluded that the material was not held by the University. The First-tier Tribunal upheld that conclusion, finding that Professor Wadhams had performed the IPCC role independently and in a private capacity.

On appeal, the Upper Tribunal considered whether physical possession, including material passing through a University email server, was enough for the material to be held under the Environmental Information Regulations 2004. It also considered whether the remaining requests should have been dealt with under those Regulations rather than FOIA.

1. Appeal dismissed. The First-tier Tribunal made no error of law in holding that the requested information was not held by the University.

2. Regulation 3(2)(a) of the Environmental Information Regulations 2004, reflecting article 2.3 of Directive 2003/4/EC, requires both possession and that the information was produced or received by the authority. The words “produced or received by” deliberately add a requirement beyond physical possession and cannot be treated as superfluous.

3. Whether information is produced or received by an authority depends on a factual inquiry into the means and capacity in which it was produced or received. The necessary connection exists where that act is attributable to the authority, for example where an employee acts professionally for it. It does not exist merely because an individual acting personally or independently uses the authority’s premises, postal address, email address or server.

4. The distinction between information held by an authority and information physically held for it could not be collapsed. The appellant’s construction would undermine the carefully limited definition of public authority in the Convention, Directive and Regulations.

5. The First-tier Tribunal’s unchallenged factual finding was that Professor Wadhams acted for the IPCC in a private and independent capacity. The reports were therefore not produced or received by the University, and it was unnecessary to determine whether copies could have been found on its computer system.

6. The challenge to the use of FOIA for requests 2 and 3 also failed. Those requests concerned incidental administrative matters, not environmental information; in any event, the finding that the information was not held would have disposed of all requests.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed. The Tribunal upheld the First-tier Tribunal’s conclusion that the University did not hold the requested information under the Environmental Information Regulations 2004.

• First-tier Tribunal: decision issued on 25 October 2014. It upheld the Information Commissioner’s decision and found that the IPCC material was held by Professor Wadhams independently, not by or for the University.

• Information Commissioner: Decision Notice dated 10 April 2015. It concluded that request 1 fell under the Environmental Information Regulations 2004, the remaining requests under the Freedom of Information Act 2000, and that the University did not hold the information.