Colin Duke v The Information Commissioner

1. The appeal is dismissed.

2. The decision to refuse to disclose information pursuant to regulation 12(4)(b) of the Environmental Information Regulations 2004 (the EIR) is upheld. REASONS Background

3. This appeal concerns a request for environmental information made by the appellant on 26 September 2024 to the City of Bradford Metropolitan District Council (the Council). The request is set out in full in the decision notice IC-35721-D7H7 dated 11 September 2025 and is not repeated here. The information the appellant sought relates to two reservoirs.

4. The Council responded on 21 November 2024 and disclosed some of the requested information. The Council withheld the remainder of the information pursuant to the exceptions in regulations 12(5)(a) and 13 of the EIR. The Council conducted an internal review and on 19 December 2024 disclosed further information but maintained the application of the exceptions under regulations 12(5)(a) and 13 in respect of the remainder of the requested information.

5. The appellant complained to the Information Commissioner, the first respondent (the Commissioner) on 21 January 2025. During the ICO’s investigation, the Council sought to withhold information under regulation 12(4)(b) in addition to the exceptions already relied on.

6. The Commissioner considered whether the Council was correct to rely on regulation 12(4)(b) and in finding that it was, did not go on and consider regulations 12(5)(a) or 13. The respondent’s decision

7. In a decision notice dated 11 September 2025, the Commissioner found that regulation 12(4)(b) was engaged and that the balance of the public interest favoured maintaining the exception. The Commissioner found that the Council’s handling of the appellant’s request breached regulation 14 and although he did not require the Council to take further steps, the Commissioner set out his concerns as a reminder to the Council as to how requests for information should be approached. The appellant’s case

8. The appellant’s notice of appeal against the decision of the Commissioner is dated 7 October 2025. In his grounds of appeal, he challenges the Commissioner’s reasoning in finding that the extent of the information requested was manifestly unreasonable and he challenges the Commissioner’s refusal to consider the Council’s reliance on regulations 12(5)(a) and 13.

9. The appellant provided lengthy and detailed written submissions in support of his appeal. They can be summarised into the following key submissions: (i) The Council failed to rely on regulation 12(4)(b) in its initial response which is contrary to the time limit for responding to a request for environmental information and is procedurally unfair because there is no valid decision notice pursuant to regulation 14. (ii) The Commissioner has no lawful authority to invite the Council to consider a new exemption after it has responded to the request for information. (iii) It was unfair to allow the Council to rely on regulation 12(4)(b) because it effectively avoided the need to consider the Council’s application of the exemptions in regulations 12(5)(a) and 13, which was flawed. (iv) The assessment of the cost of providing the requested information was based on a misunderstanding of what had in fact been requested. Specifically, the six reports referred to were not requested. What was requested was the short form Prescribed Form of Records, which is a public register the keeping of which is a statutory requirement and which must be made available for inspection. The cost of making such information available cannot be used to engage regulation 12(4)(b). (v) There was no proper assessment of the cost of providing the requested information and no calculation of the likely cost was provided within the time for the Council to respond to the request. (vi) Because the Council did not initially rely on regulation 12(4)(b), it did not conduct a public interest test and the Commissioner wrongly held that no public interest test was required once regulation 12(4)(b) was engaged. A properly conducted public interest balancing test would result in the balance falling in favour of disclosure. (vii) The Commissioner failed to consider relevant exemptions cumulatively and instead used regulation 12(4)(b) to preclude consideration of other considerations, contrary to the Supreme Court’s judgment in Department for Business and Trade v The Information Commissioner [2025] UKSC 27 ( Montague ). (viii) The Commissioner failed to comply with the directions of Judge Harris to disclose all evidence relied on (appellant’s emphasis). The hearing

10. The hearing was conducted by video, and we were satisfied that this was an appropriate method of hearing. The appellant attended in person and made oral submissions. He also clarified several matters put to him by the panel. The respondent confirmed that they would not appear and would not be represented ahead of the hearing. We considered that the respondent was notified of the hearing and chose not to attend and found that it was possible to determine the appeal in their absence. The law

11. It is not disputed that the requested information is ‘environmental information’ within the meaning of the EIR.

12. Regulation 12 of the EIR provides where 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. … (4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that– (a) it does not hold that information when an applicant's request is received; (b) the request for information is manifestly unreasonable; (c) the request for information is formulated in too general a manner and the public authority has complied with regulation 9; (d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or (e) the request involves the disclosure of internal communications. Findings and reasons

13. Some of the appellant’s submissions can be dealt with briefly, which we do now before moving on to the substantive submissions.

14. The appellant asked the tribunal whether it considered that the Commissioner had complied with direction 7(i) and (ii) of Judge Harris’ directions dated 19 November 2025. The Commissioner was directed to provide confirmation that he will rely only on documents already provided to the other parties; or provide copies of any other documents on which he intended to rely. The Commissioner completed a Certificate of Compliance on 8 January 2026 confirming that he had used his best endeavours to comply with directions and that the appeal was ready to proceed to a final hearing.

15. There is nothing in the evidence before us to suggest that the Commissioner indicated that he wished to rely on any additional documents other than those contained in the hearing bundle, or if he did, that he failed to provide them in advance of the hearing. The appellant should note that the direction relates to documents on which the Commissioner wished to rely not all documents. In any event, the appellant’s submissions on this point are entirely unclear as to how he considers that the Commissioner may have failed to comply. We find that the Commissioner complied with directions.

16. The appellant’s submissions about procedural unfairness are without merit. The Commissioner can consider exemptions not applied by the public authority. There is no provision preventing this and such provision would be incompatible with the Commissioner’s role in ensuring compliance with relevant legislation and regulations.

17. The appellant relied on O’Hanlon v the ICO and the Health and Safety Executive [2025] UKUT 66 (AAC) for his submission that the Council should not be permitted to rely on regulation 12(4)(b) because it had not done so at the time of its internal review. With respect, the decision in O’Hanlon is not on point. The Upper Tribunal considered information which was not held at the time of the request, but which was held by the time of its reconsideration. The Upper Tribunal held that under the EIR, exemptions must be considered at the time of the public authority’s disclosure decision, including any reconsideration, not just at the time of the request. The reason the issue arose, was that information within scope of the request was not held at the time of the request but was held at the time of the reconsideration. The Upper Tribunal was therefore concerned with the application of the exemptions to that information.

18. The Council’s decision did not include consideration of regulation 12(4)(b), which is reflected in the decision notice. The Commissioner finds that the Council breached regulation 14 of the EIR but did not require the Council to take any action. In this regard, there is no unfairness because the appellant has had the chance to make full argument about the application of regulation 12(4)(b) during this appeal and the tribunal can, if it finds in the appellant’s favour, substitute its own decision.

19. Had the Commissioner found that regulation 12(4)(b) was not correctly applied, he would have gone on to consider the other exemptions in substance, and the appellant would have had the opportunity to make full argument in his appeal. In any event, we note that although the Commissioner did not substantively consider regulations 12(5)(a) or 13 in his decision notice, he did in fact raise concerns with the Council about its application of regulation 12(5)(a) in his letter dated 7 August 2025. In addition, those concerns are also expressed in the decision notice under the heading ‘Other matters’.

20. To address the appellant’s other submissions, the panel asked the appellant questions about the nature and substance of his request for information. The appellant explained that that the Reservoirs Act 1975 requires a prescribed form of record to be kept in relation to raised reservoirs. This record contains information about the reservoir to which it relates. That information must be registered. The appellant explained that there is also a public form of record, which is derived from the prescribed form of record and is effectively a summary of it. He stated that this public form of record must be made available on request. The appellant indicated that it was the public form of record that he wanted, rather than the detailed technical reports that the Council identified as being within the scope of his request.

21. He stated that he had made requests to the Council for the public form of record, but that the Council had not provided it to him. When asked about whether there is any record of his requests, he stated that he had made them by telephone and that there were no records. While we do not doubt that the appellant requested access to the public form of record as he states, we have no evidence that he requested it in such a way that the Council clearly understood what he was asking for or that he followed any relevant Council procedures for requesting access.

22. The appellant stated that it was the unsuccessful attempt to obtain the public form of record which prompted his request under the EIR. He indicated that what he wanted was information relating to blocked and demised watercourses relating to two reservoirs. The panel asked him to point to where in his request that would have been obvious to the person processing the request. The appellant essentially replied that it would have been obvious that that was what he wanted because of the nature of the information contained in the public form of record.

23. We cannot accept the appellant’s contention that it would have been obvious that what he was in fact requesting was only the information contained in the public form of record. Although he states: ‘I request in the Public Interest that held by the Council in respect of the Obligation to Register within the meaning of the Reservoir Act (1975)… the following information’, what follows is a very detailed request for specific information. Nowhere does he ask expressly for information about blocked watercourses. In addition, at point 16 of his request, he specifically asks for ‘copies of any Inspection, Reports, Certificates in particular required to be held…’

24. While it may have later become apparent that the appellant was in fact concerned with blocked watercourses from the background he provided as to why he had requested the information, the Council had to nevertheless consider the request he had made. While the background to his request may have been clarified, the request did expressly request copies of inspections, reports and certificates and the Council was entitled to consider that the six reports it identified were within scope of the request. In other words, it was not obvious from the appellant’s request that all he sought was access to the public form of record.

25. We find therefore that the Council’s identification of the six reports as coming within the scope of the appellant’s request was reasonable and that the scope of the appellant’s request was not solely limited to access to the public form of record. We now move on to consider the application of regulation 12(4)(b).

26. The Upper Tribunal held in Vesco v Information Commissioner and Government Legal Department (Information rights – Environmental information – exceptions) [2019] UKUT 247 (AAC) that there is a three stage test to be applied when considering whether a request is manifestly unreasonable: (i) Decide whether the request is manifestly unreasonable, taking into account the burden on the public authority of answering the request; the requester’s motive; the value or serious purpose of the request; and the harassment or distress of the public authority’s staff. (ii) If the request is manifestly unreasonable, apply the public interest test. Application of the test may result in an obligation to disclose, even if the request is manifestly unreasonable. This is a fact specific test, turning on the particular circumstances of each case and requires a balancing of the public interest in disclosure against the public interest in withholding. (iii) If the first two stages do not result in disclosure, consideration of the presumption in favour of disclosure in regulation 12(2). Is the request manifestly unreasonable?

27. The appellant has explained that the purpose of his request was to obtain information regarding two high risk reservoirs. The local community asked him to report on the nature and condition of two dams in the vicinity of a proposed development of around 180 houses. The concern was that the development would be at risk of flooding in the event of a discharge from the dams. We find that the appellant’s request was for a genuine purpose and that the request does have a serious value and purpose, i.e. to enable him to advise the community. We find that there was no harassment or distress caused to the Council’s staff. The sole issue in assessing whether this request is manifestly unreasonable is therefore the cost to the Council of complying.

28. A request can be refused on the basis that the cost of complying with the request is manifestly unreasonable. The EIR do not set a financial limit to the cost of compliance with a request. In contrast, the FOIA regime does set an appropriate limit. That limit has been used as a benchmark in considering EIR requests, but it is not determinative. In respect of local authorities, the appropriate limit is £450 (Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the 2004 Regulations)), or 18 hours of time, charged at £25 per hour.

29. The appellant asserts that the Council failed to provide a proper assessment of the cost of complying with his request and that because the information he had requested is required by statute to be made available, the cost of doing so cannot be manifestly unreasonable. As we have set out above, we have rejected the appellant’s submission that what he requested was solely information which was required to be provided. In any event, we note that section 2(2) of the Reservoirs Act 1975 requires that the register shall be ‘available for inspection at all reasonable times by any person’. The provision does not require that a copy of the register be made available. For these reasons, we find that the cost of providing a copy of information contained in the register, even if that was all that the appellant had requested (which we have not accepted), can be considered and is capable of being manifestly unreasonable.

30. The Council provided information as to the estimated cost of reviewing the six reports. This was based on some 230 pages of documents, an estimated 15 minutes per page to locate, retrieve, extract and provide the information, and an hourly rate of £25. The total estimated time was 57.5 hours at a cost of £1,437.50. The hourly rate is appropriate in light of the 2004 Regulations.

31. The tribunal did not have sight of the requested information; however, the Commissioner did consider it. The Commissioner was of the view that the information largely relates to the management and technical inspection of reservoirs, a fact that was not challenged by the appellant. The Commissioner considered that some, if not most of the withheld information is likely to fall under the exemptions in regulation 12(5)(a) and/or regulation 13 because it may reasonably contain detail that would allow individuals to identify and exploit vulnerability in their design. The Commissioner also noted that two of the reports were specifically labelled as Official-Sensitive, which supports his analysis of the content of the information.

32. The Commissioner cited two previous decisions in which he found that information about reservoirs can fall under the exception in regulation 12(5)(a), noting in particular the National Protocol for the Handling, Transmission and Storage of Reservoir Information and Flood Maps which requires that disclosure not expose any vulnerabilities of a reservoir. The Commissioner further noted that some of the information would require review by specialist officers with knowledge of the subject matter to determine the level of adverse effect that the regulation 12(5)(a) is designed to protect against.

33. The Commissioner also noted that some of the requested information would constitute personal data requiring consideration under regulation 13.

34. Although the Commissioner did not make specific findings about the engagement of regulations 12(5)(a) or 13, the relevance of this consideration is that it justifies the need for the Council to carefully review the information before deciding to disclose. We find that the Council would need to consider the exceptions before making a decision about disclosure and that this justifies the Council’s estimate of the time it would take to respond to the request.

35. It can be seen therefore that the Council’s estimate exceeds the appropriate amount by some considerable way. The Commissioner addressed this and observed that even if the time estimate is reduced by half, the time it would take to review the requested information would be more than 28 hours of officer time. This still exceeds the benchmark we have applied by some considerable degree. This should be viewed in the context of the appellant’s own observation that the Council was ‘teetering on the brink of bankruptcy’, although we give it very little weight as it was not a matter in evidence before us.

36. For all of these reasons, we find that the cost of complying in full with the appellant’s request would be onerous in terms of the time it would take and the officer resources that would be required. We find that the cost of complying with the request would be manifestly unreasonable. Public interest test

37. Contrary to what is asserted by the appellant, the Commissioner did not say that a public interest balancing test was not required once regulation 12 (4)(b) was engaged. The Commissioner carried out a balancing exercise, which is set out at paragraphs 36 to 47 of the decision notice.

38. We have conducted our own public interest balancing exercise and find as follows: Factors in favour of disclosure (i) There is public interest in openness and transparency regarding the Council’s management of reservoirs. (ii) The proper management and safety of reservoirs is of public interest generally and specifically to individuals who live nearby. Factors against disclosure (i) There is public interest in ensuring that the Council’s resources are protected from undue burden. (ii) Compliance with the request would require significant Council resources. (iii) The purpose of the appellant’s request has been met in part from the information already disclosed by the Council. Specifically, the appellant was provided with evidence that the watercourse is blocked, which is a matter he told us he was particularly concerned about. (iv) The information the appellant states that he seeks, i.e. the information contained in the public form register, is required to be made available to him to examine. As we have already noted, this does not require that the Council provides him with a copy of the information, merely that it is made available for him to examine. It is open to the appellant to make a clear and unambiguous request to examine the public form register to the Council. Where does the balance fall?

39. We have given particular weight to the need to protect the Council’s resources from undue burden and that the cost of compliance would be significant. We have also given weight to the fact that the appellant’s stated purpose in making the request has in part been met from the information already disclosed. For these reasons, we find that the factors in favour of maintaining the exemption weigh more heavily than the factors in favour of disclosure.

40. We note that the appellant made a submission about the application of the judgment of the Supreme Court in Montague in conducting the balancing test. His submissions are not especially clear, but in any event, we find that they are misplaced. In Montague , the issue was whether where information falls within multiple qualified exemptions in FOIA, section 2(2) (b) of FOIA requires the public interest in maintaining each of those exemptions to be aggregated (the cumulative approach), or if it requires the public interest in maintaining each exemption to be considered separately (the independent approach). In the present case, we are considering a single exemption, i.e. that contained in regulation 12(4)(b). The presumption in favour of disclosure

41. Notwithstanding that we have found that the request is manifestly unreasonable and that the public interest balancing test favours maintaining the exemption, we have considered whether the presumption in favour of disclosure means that disclosure is required.

42. In this case we have not found that the competing public interests are equally balanced. We have found that they favour maintaining the exemption. On that basis we find that regulation 12(4)(b) was correctly applied.

43. The decision of the Commissioner is upheld and the appeal is dismissed. Signed J K Swaney Date 24 February 2026 Judge J K Swaney Judge of the First-tier Tribunal