The Secretary of State for Energy Security and Net Zero v The Information Commissioner

This is an appeal brought by the Appellant under s57 Freedom of Information Act 2000 (“FOIA”) against the Respondent’s Decision Notice number IC-273287-P3B4, issued on 6^th June 2024.

The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).

The appeal was first listed, for oral argument, on 31^st March 2025. That hearing was vacated by Judge Mornington on the day of the appeal, for the reasons set out in her case management directions. Those same directions determined that the matter would be determined on the papers, with the parties directed to file any further submissions by 4:00 pm on 22^nd April 2025. Further submissions were filed on 22^nd April 2025 and those have been taken into account.

The background to the matter was set out succinctly in the skeleton argument of the Appellant dated 28^th March 2025.

The relevant provisions of FOIA are as follows.

The relevant provisions of the Environmental Information Regulations 2004 (“EIR”) are as follows:

The original request related to four documents but only one now remains in contention. This decision relates purely to that document, which is referred to throughout the papers as “Document 4”.

This decision will refer only to correspondence, submissions, and evidence as they pertain to Document 4.

The request was made by the Second Respondent to the Department for Energy Security and Net Zero (“the Public Authority”) on 7^th August 2023. It said:

“I write to request, under EIR/FOI, copies of assessments or reports held by BEIS or DESNZ concerning the potential future availability and cost of hydrogen for home heating.

I would like any reports or assessments produced since January 2021.”

That request was refused by the Public Authority on 12^th October 2023. The Public Authority sought to rely on the exception under EIR 12(4)(d) (material in the course of completion). There was not, at that time, and has not been since, any reliance on the other two limbs of the regulation.

The Decision Notice was issued on6^th June 2024. In it the Commissioner:

An appeal was filed on 4^th July 2024 by the Appellant.

In summary, the grounds of appeal (as they relate to Document 4) are that:

The Response of the First Respondent, dated 2^nd August 2024, was as follows:

The questions for the Tribunal were as follows.

Is the test set out in Regulation 12(4)(d) met? Does the request relate to material which is still in the course of completion, to unfinished documents or to incomplete data?

If it is, does the public interest in withholding the information outweigh the public interest in disclosing it?

Alternatively, is the test set out in Regulation 12(4)(e) met? Does the request involve the disclosure of internal communication, including communication between Government Departments (Reg 12(8))?

It is important to note that we are dealing here with exceptions. The starting point is that there is a duty to disclose the information unless an exception applies. This is an important concept in matters of public discourse.

The Tribunal was not persuaded by the points raised by the Appellant at paragraph 31 of its Grounds. They may have been intended to address the public interest test set out in Reg 12(1)(b). However they were not identified as such and therefore the Tribunal felt it important to address them.

In short the argument appeared to the Tribunal to be that the release of the information might be misleading as to the state of the Secretary of State’s investigation into the issues, misleading the public and undermining trust in the Government; that in turn might have a “chilling effect” on future policy formation: that in turn might dissuade officials from producing analysis until fully confident; thus inhibiting policy and inhibiting free and frank internal debate at an early stage. These appeared either to be general arguments against the substance of the regulations themselves or to be arguments relating to the timing of the release of information. Either way, they did not, we felt, apply to the specifics of the case before us.

The view can perhaps be summarised, as it was by the Appellant elsewhere in its grounds: there is a risk that the Decision “would permit third parties to use EIR to in order inappropriately to shortcut and/or seek to influence important policy decisions at a time when decision-making remains in progress because the evidence base is not yet complete”.

It struck the panel that there is nothing inappropriate about the public using its political voice. Indeed, in a democratic society, there is no reason why the public should not see information of this nature, even if the process is incomplete, and every reason why it should. It is the release of that information which informs public and political debate and that is a cornerstone both of democracy and of the Information Rights and Environmental Information regime.

The Government bears the responsibility of ensuring that information which is in the public domain (subject to the exceptions set out in that regime) is as transparent, accurate and complete as possible and that, where appropriate, it bears caveats so that the public may engage in public discourse around matters of national importance.

It is not argued that the document itself is incomplete.

The Appellant concedes, at paragraph 10 of its Grounds, that the document “is a completed piece of work”. The Panel accepted that.

Further, it is clear from the evidence that Document 4 has been released to other government departments. That suggests that it is a finished piece of work and is therefore no longer in the course of completion. There was no evidence to suggest that the document was sent with any caveat or marked incomplete

The position taken by the Appellant is this: rather than seeking to contend that the document itself is incomplete, as it goes on to say, Document 4 is “a part or subsetofmaterial which is still in the course of completion” – namely the material, or evidence base, on which SS (and the broader Government) will reach the forthcoming strategic decision on the role of hydrogen in heating”.

The Tribunal found it impossible to reconcile that position with the fact that the other three documents which formed the original request have now been released in compliance with the Decision Notice.

Nonetheless, the Tribunal did consider the case law which deals with whether the material could fall to be considered as that which is in the course of completion. We considered the cases of Highways England v Information Commissioner and Manisty [2018] UKUT 423 ACC and Chris Ames v the Information Commissioner and the Department of Transport [2015] EA/2015/0283.

While the Chris Ames case is not binding, it was endorsed in the subsequent case of Manisty, which is. The Upper Tribunal’s analysis in Manisty, upholding the reasoning of the First-tier Tribunal, was that, while there are no clear definitions of “material in the course of completion” within the EIR itself, the Commissioner’s Guidance Note of May 2016 is to be relied upon. That says:

In that case, it was held that the terms of the request are important. The Tribunal did not wish to make a “forced distinction” between documents and material but noted that a particular document, if complete, may still form part of “material which is still in the course of completion”.

We distinguish the material in this particular case from this analysis for one simple reason: the disclosure of those other documents which were previously part of the same request. The Public Authority makes no arguments which support a distinction between Document 4 and the other documents such that it would be brought into a separate scope. The facts, as they appeared to the Tribunal, were that if three of the four documents had been disclosed it would seem to follow that the fourth should fall to be so in the absence of any compelling argument to distinguish it from them.

Manisty also notes that the exception must be applied restrictively. This follows a long line of European and UK authorities and supports the general position, which is that the Regulations are in favour of disclosure.

Paragraph 22 of the Decision Notice is endorsed by the Tribunal. It said:

Having found that Reg 12(4)(d) was not engaged, there was no need to go on to consider the public interest balance set out in Reg 12(1)(b).

As to the argument that the document represents internal communications (as defined in EIR Regulation 12(4)(e) and defined in Regulation 12(8), put forward in the alternative in the Appellant’s Grounds, that argument is rejected. Other than a brief assertion, the argument was not developed as to why the document meets the test.

Our brief findings on that point were that the fact that a report is shared between departments does not, the Tribunal consider, make it “communication”. Communication has its own definition and, given its every day meaning, we decline to consider, in the absence of any arguments to the contrary, that the material constitutes communication.

For those reasons the appeal is dismissed.