Diego Lourenco v The Information Commissioner & Anor

An appeal to the Upper Tribunal in an information-rights case succeeds only where the First-tier Tribunal made a material error of law. It is not a rehearing on the merits or an opportunity to reargue the evidence. The First-tier Tribunal’s jurisdiction is ordinarily confined to deciding whether the Information Commissioner’s decision notice accords with the law, although obligations arising under other legislation may be relevant to the Environmental Information Regulations’ public-interest balance. The commercial-confidentiality exception may apply while development proposals remain at an early stage. A disagreement with the tribunal’s assessment of commercial harm, transparency, or competing public interests is insufficient where the assessment was reasonably open to it.

The appeal concerned a request for an unredacted outline business case relating to the proposed Hendon Hub redevelopment. The London Borough of Barnet disclosed a redacted version but relied on regulation 12(5)(e) of the Environmental Information Regulations 2004 to withhold commercially confidential information.

The Information Commissioner upheld that approach in a decision notice dated 5 November 2021. Following a hearing on 27 May 2022, the First-tier Tribunal decided on 17 June 2022 that the decision notice was in accordance with the law. Mr Mason, the original requester, died and Mr Lourenco was substituted as appellant before the Upper Tribunal.

Permission to appeal was granted on grounds concerning jurisdiction, commercial impact, the public-interest balance, transparency, and other legal principles. The central issues were whether the First-tier Tribunal had erred in law and whether any error was material.

1. The appeal was dismissed. The Upper Tribunal’s task was to determine whether the First-tier Tribunal’s decision involved a material error of law. An appeal was not an opportunity to reconsider all issues afresh or to substitute a different merits assessment.
2. The First-tier Tribunal’s information-rights jurisdiction was limited to deciding whether the Information Commissioner’s decision notice was in accordance with the law. It had no standalone jurisdiction to adjudicate on the Local Government Act 1972. However, a statutory obligation requiring disclosure could be relevant as a subsidiary matter in the public-interest balancing exercise under the EIR. The court declined to determine the precise boundaries of that jurisdiction because any error would have been immaterial.
3. Paragraph 9 of Schedule 12A to the Local Government Act 1972 did not exclude the relevant exemption at the stage concerned. The Hendon Hub proposals were at an early stage and no planning application had yet been submitted. The interpretation in R (Helen Stride) v Wiltshire County Council [2022] EWHC 1476 (Admin) supported that conclusion.
4. The lawfulness of the public-interest balance under regulation 12(5)(e) had to be assessed at the time of the refusal to disclose, not at the time of a later appeal. The Information Commissioner and the First-tier Tribunal had conscientiously assessed the commercial-confidence exception and the competing public interests. Their conclusions fell within the range of reasonable options open to them.
5. The First-tier Tribunal was entitled to find that the information’s disclosure could adversely affect commercial interests, particularly given the early stage of negotiations, while disclosing a redacted version. The appellant’s disagreement with its weighing of the evidence, transparency considerations, and public interest did not establish a material error of law.

• Upper Tribunal (Administrative Appeals Chamber): appeal from the First-tier Tribunal’s decision dated 17 June 2022 dismissed.
• First-tier Tribunal (General Regulatory Chamber): following the hearing on 27 May 2022, upheld the Information Commissioner’s decision notice dated 5 November 2021.
• Information Commissioner: decided that the London Borough of Barnet was entitled to rely on regulation 12(5)(e) of the Environmental Information Regulations 2004.