There was one judicial decision this month we thought we’d include, since it has some wider significance, and we both acted in it – Aaron providing initial advice and drafting, John acting at the hearing. It was an appeal to the FTT by the Committee on Climate Change (CCC) against the Information Commissioner’s ruling that the CCC was obliged under the EIR to disclose the spreadsheets underlying its Net Zero Report to the requester, Mr Montford (for whom we were instructed). The CCC had refused on the basis that the spreadsheets were unfinished documents or incomplete data, that the request was manifestly unreasonable given the time it would take to comply, and that they were internal communications within the CCC. In each case, they said that the public interest in maintaining the exception outweighed any public interest in disclosure.
Following a two-day hearing, the FTT handed down its lengthy reserved judgment at the start of August. They held that it was important to interpret exceptions restrictively when considering whether they were engaged. They rejected the suggestion that the spreadsheets were unfinished documents because they were drafts of the final report: once the report was finalised, the spreadsheets that underpinned its figures were complete for that purpose.
They found that the spreadsheets did amount to internal communications given that they were saved centrally and worked on by different analysts. But the public interest in disclosure outweighed the public interest in maintaining the exception.
Finally, they found that the request was not manifestly unreasonable. The time it would take to provide additional explanation about the spreadsheets could not be taken into account by the CCC: that is not required to comply with the request, but a choice by the CCC. What should be taken into account is the steps which the CCC could reasonably be expected to have to take in order to comply with the request. That would include the identification and redaction of exempt material – but in this case, having found that the other claimed exceptions did not apply, that did not arise. Overall, they found that the burden on the CCC of dealing with the request was not disproportionate to the value of the information once disclosed.
The Information Commissioner had suggested that the right outcome might be to make no order for disclosure given the difficulties the CCC would have in identifying the appropriate spreadsheets to provide. The FTT gave this short shrift: this was a problem of the CCC’s own making, because they kept no final versions either on completion or at the point of the request. The CCC was ordered to disclose the spreadsheets on a ‘closest match’ basis, and has now done so.
Though only a first-instance decision, the decision is noteworthy for its careful analysis of what can and cannot be taken into account when asserting that a request under the EIR is manifestly unreasonable, and for the impact of the CCC’s poor records management, version control and archiving. Given that their recommendations – as the FTT observed – relate to matters of extreme public importance, the public interest was always likely to tip in favour of disclosure, but the CCC did itself few favours.
A monthly data protection bulletin from the barristers at 5 Essex Chambers