The Upper Tribunal has ordered the protection of limited sensitive financial information held by the Environment Agency (now Natural Resources Wales) (the 'Agency') in relation to a landfill site from disclosure under the Environmental Information Regulations 2004 following a request from Swansea Friends of the Earth (‘SFoE’) on the basis of commercial confidentiality.

Natural Resources Wales and SI Green (UK) Ltd v Information Commissioner and Friends of the Earth Swansea [2013] UKUT 0473 (AAC)

Key points

  • A public authority may withhold information under regulation 12 of the Environmental Information Regulations (the ‘EIRs’) (which relates to confidential information) if it is satisfied that the public interest in withholding the information outweighs the public interest in disclosure.
  • Where the information in question is commercial or industrial a public authority may withhold that information if and in so far as disclosure may affect confidentiality. But it may do so only if the confidentiality is provided by law and the reason for it being provided is to protect a legitimate economic interest.
  • The Upper Tribunal emphasised that the confidentiality of commercial or industrial information under regulation 12 of the EIRs must be considered without reference to section 41 of the Freedom of Information Act 2000 (‘FOIA’) which also deals with confidential information.

Background

SFoE made a request for information to the Agency due to concerns it had about a landfill site in a former quarry at Cwmrhydyceirw on the outskirts of Swansea (the ‘Site’). The Agency had responsibility at the time for granting permits in relation to landfill sites. SFoE was particularly concerned about arrangements between the Agency and SI Green (UK) Ltd (‘Green’) relating to financial guarantees about the operation of the Site. The Agency released much of the information to SFoE but it withheld certain limited sets of figures, redacting them from the documents released.

The Agency refused to disclose the specified information on the ground of commercial confidentiality, citing regulation 12(5)(e) of the EIRs. It accepted that the EIRs imposed a presumption in favour of publication, but concluded that on balance the factors in favour of nondisclosure outweighed those in favour of disclosure.

SFoE complained to the Information Commissioner (the 'Commissioner'). The Commissioner found that the Agency was entitled to rely on regulation 12(5)(e) in respect of the redacted figures that the Agency continued to withhold and that it would not be in the public interest to release them. SFoE appealed against this decision to the First-tier Tribunal (the 'FTT').

The FTT allowed the appeal and ordered that the redacted information should be disclosed. The FTT held that, on the facts, Green had not imparted any information in confidence to the Agency and therefore there was no duty of confidence applying to the information redacted. As a result, regulation 12(5)(e) did not apply. There was no other legal basis on which the information could be withheld. The FTT also held that, even if regulation 12(5)(e) had been engaged, the public interest outweighed that of commercial confidentiality and this was not a reason for non-disclosure.

The Agency (which by this time had been succeeded by Natural Resources Wales) appealed to the Upper Tribunal.

The Upper Tribunal's decision

The Upper Tribunal held that the question whether the Agency was required or entitled by law to keep the figures from the public eye because of their commercial sensitivity must be considered under regulation 12 of the EIRs and the Pollution Prevention and Control (England and Wales) Regulations 2000 (the '2000 Regulations') and without reference to section 41 of FOIA. The tests were separate and could not be read together simply because they dealt with similar issues.

The FTT erred in law in its approach to the most important strand in the test under regulation 12(5)(e); that disclosure of the relevant information would adversely affect confidentiality "where such confidentiality is provided by law to protect a legitimate economic Regulations which made an express reference to commercial confidentiality. It was plain that the figures in question were produced within the 2000 Regulations framework and were subject to the necessary application and ruling to protect their confidentiality.

Where an application for a licence was made in a commercial context it was clear that the applicant had an economic interest in the outcome of the process. The confidentiality here was, as a result of the discussions that took place, strictly limited to certain sensitive figures representing actual or potential sums of money. Once it was apparent that the information withheld under the 2000 Regulations was limited in this way, the Upper Tribunal had no hesitation in holding that the legal protection of the 2000 Regulations was rightly invoked in this case to protect a legitimate interest.

It followed that the Commissioner was right in law in taking the view that the figures remained under the protection of the 2000 Regulations and the FTT was wrong in law in finding otherwise.

On that basis, the Upper Tribunal found that the requirements of regulation 12(5)(e) and 12(1)(a) of the EIRs were met.

The Upper Tribunal set aside the FTT’s decision on the ground that it erred in law and referred the matter back to it to consider the appeals again and to give full and fresh consideration to the balancing of policy considerations under regulation 12(1)(b) of the EIRs (the public interest test).

Comment

This judgment emphasises the distinction between questions of commercial confidentiality that arise under regulation 12 of the EIRs and the principles applicable under section 41 of FOIA. The Upper Tribunal was clear that they are different tests and should not be read together even though they deal with similar issues.

SFoE based its case on the requirement for transparency. The Upper Tribunal accepted the importance of the general principle of transparency, acknowledging that one of the main purposes of the underlying European Directive was to ensure the transparency of the licensing process by opening it up to public scrutiny. In finding that the requirements of regulation 12(5)(e) were met, the Upper Tribunal was mindful that the confidentiality here was strictly limited to certain sensitive figures. An attempt by the Agency to withhold anything wider might not have been enough to ensure compliance with the transparency principle. This case therefore illustrates the importance of targeted attempts at redaction or withholding of information, which are likely to find greater favour with the Courts than blanket refusals to disclose.