Regulation 12(4)(e) of the Environmental Information Regulations provides that a public authority may refuse to disclose information to the extent that the request involves the disclosure of “internal communications”. Regulation 12(5)(f) provides that a public authority may refuse to disclose information to the extent that its disclosure would “adversely affect the interests of the person who provided that information” in specified circumstances. “Would adversely affect” should be interpreted in the sense that the “adverse effect” has to be identified, and the disclosure “would” have that adverse effect, not “could” or “might”. If the conditions of 12(4)(e) and/or (5)(f) are met, then the information must be disclosed only to the extent that, in all the circumstances, the public interest in maintaining the exception outweighs the public interest in disclosure. These conditions have been considered by the FTT in Middlesborough Council v ICO, EA/2019/0108.
The FTT reviewed the withheld information, and concluded that e-mails between council employees, and their attachments, were “internal communications”, and therefore the Regulation 12(4)(e) exception was engaged. The FTT then went on to consider the public interest balance in relation to the internal communications. They observed, at paragraph 29, that employees of a public authority exchanging internal e-mails about a planning application are “expected to be aware” that such e-mails are “potentially disclosable”.
At paragraph 30, the FTT continued:-
“We accept that there is a need for a safe space for candid discussion whilst the planning application process is ongoing, and disclosure before a decision has been made is not likely to be in the public interest.”
However, they went on that, once a decision has been made, the public interest in favour of maintaining the confidentiality of those discussions “greatly” recedes. Bearing in mind the presumption in favour of disclosure in Regulation 12(2), the FTT found that (paragraph 34) that, in all the circumstances, the public interest in maintaining the “private space” exception did not outweigh the public interest in disclosure.
Finally, the FTT considered the Regulation 12(5)(f) exception.