Peter William Styles v Information Commissioner & Anor

This is an appeal against a decision of the Information Commissioner (“the Commissioner”) dated 1 August 2024 referenced IC-299461-L8C3 (“the Decision Notice”). The appeal concerns a request for information made to Affinity Water Limited (AWL”) under the Environmental Information Regulations 2004 (“EIR”). AWL is body that is a “public authority” for the purposes of EIR (regulation 2(2)(c)).

The parties opted for a determination of the appeal on the papers. The documentary evidence comprises an open and closed bundle. The closed bundle consists of the withheld information. It is held under Rule 14(6) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“2009 Rules”) in accordance with Tribunal directions of 2 January 2025.

The Tribunal also received information supplied by the parties in response to further Case Management Directions seeking clarification on certain points dated 1 July 2025 (see below). AWL has provided a Supplemental Closed Annex for which it seeks a further order under Rule 14(6) of the 2009 Rules. The Rule 14 Order that is already in place is broadly worded to encompass Closed material filed in these proceedings. For the avoidance of doubt, a further Rule 14 Order is made, subject to the outcome of this Decision.

The Rule 14 Order does not include a requirement for the Tribunal and the Commissioner to destroy the Closed material within 14 days of issue of the Tribunal’s decision, as sought by AWL. Such provision is opposed by the Commissioner who has confirmed that he retains both the open and closed bundles as served in section 57 FOIA appeals in accordance with his retention and disposal policy. The Tribunal agrees with the Commissioner for the reason stated. It is unnecessary and inappropriate for the Tribunal itself to be bound to destroy documents to a timescale specified by a party to proceedings.

The Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with Rule 32 of the 2009 Rules.

The Tribunal has produced this single open Decision. There is no need for us to produce a closed Decision.

On 5 March 2024, the Appellant sent this request (“the Request”) to AWL and requested the following information:

“I am compiling an inventory of information on the chalk streams of England. Will you please let me have a list of boreholes which abstract water from a chalk aquifer in you [sic] area. Please include the EA permit number and name of the nearest village or town if this is not apparent from the name of the source.”

Refusal of the Request

On 19 March 2024, AWL refused the request on the basis that the information requested was exempt from disclosure under regulation 12(5)(a) EIR (national security and public safety).

By Decision Notice dated 1 August 2024, the Commissioner found that AWL was entitled to rely upon regulation 12(5)(a) EIR and that the public interest favours maintaining the exception.The Commissioner did not require AWL to take any steps. The Commissioner gave the following reasons for his decision:

The information is ‘environmental’. It is information on a measure (the extraction of groundwater sources) likely to affect the environment (water).

Just because there has been no major attack on such infrastructure in recent times does not mean the information could be disclosed without increasing the risk.

Few boreholes are likely to have sophisticated security systems to protect them. Their security lies in the fact their locations are only known to a small handful of people.

Making more detailed information available increases the likelihood of boreholes being located and places them at greater risk of vandalism. An attack may not mean to cause mass damage or put the public at risk, but that could be the effect.

The Commissioner is satisfied that disclosure of the information would adversely affect national security and public safety. The requested information engages the exception under regulation 12(5)(a) of EIR.

Having made that finding, the Commissioner applied the public interest test. He found there is strong public interest in understanding where the process of extracting water from chalk streams is having major effects on rivers. The Commissioner is not satisfied that there is a pressing need to show exact locations.

AWL already makes some information available on its catchment area. During the course of the investigation, AWL disclosed a list of chalk boreholes and largescale map showing groundwater extraction points. It provided a four-digit grid reference and unique ID for each borehole. The disclosure suffices to satisfy the public interest.

Disclosure of the withheld information would not add significantly to the available information, but it would risk compromising critical infrastructure and affecting public safety.

The public interest lies in favour of withholding the information.

The Notice of Appeal is dated 5 August 2024. Essentially, the grounds of appeal are:

The Appellant adds that:

The Commissioner opposes the appeal, as summarised below.

In terms of the scope of the Request, the Commissioner submits that the Request is correctly quoted in the decision notice. The Appellant sought “the nearest village or town” to the relevant boreholes. The Commissioner understands this information is available from the Groundwater Abstraction Sites map or by using the grid reference that AWL disclosed to the Appellant on 25 July 2024.

AWL submitted a 39-page response, including a chronology, legal and factual framework along with a (redacted) witness statement from its Head of Water Resources and Environment. The Tribunal panel has read all the documents thoroughly, but we do not summarise the entirety of the documents, it being impractical and unnecessary to do so. Essentially, AWL supports the Commissioner’s decision and resists the appeal, as below:

The information requested concerns “Abstraction Licences” that contain the particular locations of boreholes for the abstraction of water for consumption in the geographical area for which AWL is responsible under section 6 of the Water Industry Act 1991.

AWL considers that this detailed information could pose a risk to public safety and/or national security such as a terrorist attack or criminal act such as vandalism on water supplies for the public at such a borehole. Disclosure of their precise location under EIR to the world would adversely affect (by endangering) national security and public safety.

Abstraction of water through boreholes is not regulated under the Environmental Permitting Regulations 2017 and so there can be no “EA permit” for a borehole. Instead, abstraction is regulated by means of an “Abstraction Licence” which are numbered enabling their particular identification. Importantly, they contain a 12-digit national grid reference and their particular purpose of the extraction. The Appellant incorrectly categorised his request as being for “EA Permits”.

The result of the Request is to ask for information that could pinpoint borehole locations. The Appellant remains insistent that the “Abstraction Licence” reference numbers be provided. It is incorrect that the Appellant is not asking for the disclosure of increased detail.

A request for licence disclosure results in publication to the world at large. In the hands of a person with intent to cause harm, there is resulting threat of harm to national infrastructure and/or public safety by means of damage to national water supply infrastructure and/ or contamination of public water supplies.

AWL disclosed a list with 4-digit national grid reference of boreholes in its supply area (i.e. to 1 sqm geographical area). This aligns with DEFRA’s 2012 published guidance to Water Companies and other guidance. AWL also provided a map of their approximate locations as well as a reference in line with the Appellant’s amended Request. In doing so, AWL considers that it discharged its regulation 9(1) obligation to assist the Appellant, whilst having regard to the requirements of the Secretary of State to maintain secure and safe water supplies in its area.

When the Tribunal first convened on 24 June 2025 to determine this case on the papers, we identified matters requiring clarification before arriving at a decision. In particular, it was not wholly clear what information the Appellant considers is outstanding from his Request, and what information can be obtained if the Abstraction Licence number is released. Therefore, in Case Management Directions dated 1 July 2025 the Tribunal directed the Appellant and AWL to provide clarification. Those directions gave all the parties opportunity to provide a written submission in reply to another party’s response if they so wished.

The Appellant’s reply explained that the ‘Water Body ID’ (“WBID”) is the basic number which is used by the EA to identify stretches of water in England as names can be confusing. The Appellant reiterated that the terms ‘permit’ and ‘licence’ are used interchangeably by the EA and the water companies including AWL. There was a “typo” in his Request by using the word “permit” instead of “licence”. The licence number is the basic reference which the EA uses in its database and in everyday operations. It can be used to access details of the licence including the quantity of water allowed for abstraction and the location.

The Appellant does not seek the detailed location of the boreholes. He only requires the name of the abstraction, its purpose, the WBID and the quantity allowed for abstraction. The WBID covers an area averaging about 10 square kilometres which the Appellant considers is quite crude and is all that he requires. He acknowledged that “more detailed information could be obtained from the licence but that is not of interest to me”. The Appellant confirmed that he seeks the abstraction licence numbers. He seeks nothing else at this stage. The EA has supplied detailed information, but it is a direct print-out from its WIMS database. It is ambiguous and hence requires interpretation and the need to cross check with the individual water companies to confirm the correct WBID.

In 2019, AWL published an ‘Abstraction Incentive Mechanism’ report in table format with details of their boreholes including licence numbers. It is still available on the internet.

As part of the Case Management Directions of 1 July 2025, the Tribunal invited the Appellant to provide copies of the requests and responses if other water companies had agreed to supply the information upon the same request, as suggested. In response, the Appellant said that he did not consider it a material issue to his request. Nevertheless, he gave the names of eleven water companies with a very brief summary of the position each had taken to his request. He stated that: one gave a “full response with licence numbers”, three gave permit numbers and WBIDs, two gave licence numbers and WBIDs, two gave licence numbers only, one gave WBIDs only, one gave “partial compliance” but refused licence numbers subject to this appeal, and one refused the request.

When AWL queried the brevity of the responses, the Appellant replied that he felt that the court would not like to be bombarded with the detailed emails from each of the nine companies who provided the requested data. The Appellant said that he had copied each of the detailed company responses to AWL for checking and invited their confirmation that the list is accurate.

Following an unopposed application for an extension of time, the Tribunal varied its Directions to allow AWL up until 15 September 2025 to file its reply to the Appellant’s responses and to answer our questions posed in the Case Management Directions.

The additional information received pursuant to those Directions included an open witness statement of Ruth Luxford, Senior Regulatory Counsel at AWL. She explains that AWL contacted the third-party water companies listed by the Appellant to whom the same request was sent to obtain confirmation upon which basis they disclosed, or did not disclose, the information requested. The responses reveal that some water companies disclosed Abstraction Licence numbers and other information, and some water companies did not. Ms Luxford submits that the different approaches to responding suggest they applied a risk assessment process particular to the geological situation of their supply area. AWL is largely dependent on chalk aquifers, whereas other English regions are not. She states that this was a factor that AWL took into account when assessing whether or not to disclose the requested information.

The gist of the Closed Annex explains the importance of the Abstraction Licence number in the area of public water supply by AWL; describes third party responses to AWL; responds to the questions of the Tribunal on fact and law and to the additional evidence provided by the Appellant.

In reply, the Appellant submits that the responses obtained by AWL from the other water companies confirms his answers to the Tribunal. He says that South West Water owns Bournemouth Water, so they are the same company. Not all the water companies responded with the requested information but eight of them did. It was never the Appellant’s intention to “publish to the world”. His publication is via targeted emails only to parties who are concerned with the welfare of the chalk streams and Members of Parliament who have streams in their constituencies. If national security is threatened, then the Appellant questions why eight water companies provided the requested information.

Both the Appellant and AWL provided closing statements summarising their positions.

As the Court of Justice of the European Union has said: “The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal”. (Office for Communications v Information Commissioner Case C-71/10 at paragraph 22).

EIR does not expressly require the grounds for refusal to be interpreted in a restrictive way, but given the obligation to interpret the EIR purposively in accordance with the Directive the overall result in practice ought to be the same i.e. the grounds for refusal under the EIRs should be interpreted in a restrictive way (Vesco v (1) Information Commissioner and (2) Government Legal Department [2019] UKUT 247 (TCC))

Regulation 2(1) of the EIR defines “environmental information”. It is well established that the term is to be given a broad meaning in accordance with the purpose of the underlying Directive 2004/4/EC.

Regulation 5(1) provides that subject to any exceptions, a public authority that holds environmental information shall make it available on request. By regulation 9(1) a public authority shall provide advice and assistance, so far as it would be reasonable to expect it to do so, to applicants.

Regulation 12 contains exceptions to the duty to disclose environmental information. Where relevant, it provides:

Requests for environmental information are expressly excluded from the Freedom of Information Act 2000 in section 39 and must be dealt with under EIR. All exceptions are subject to a public interest test and there is a presumption in favour of disclosure.

The main issues for the Tribunal to determine in this appeal are:

If application of the first two stages has not resulted in disclosure, the Tribunal must go on to consider the presumption in favour of disclosure under regulation 12(2) EIR.

AWL is a public authority within the meaning of regulation 2(2)(c) of EIR. AWL operates in three regions: Central, East and Southeast.

AWL has assets in its area comprised of boreholes used to abstract water. Abstraction of water through boreholes is not regulated under the Environmental Permitting Regulations 2017 but through the Water Resources (Abstraction and Impounding) Regulations 2006, by means of an “Abstraction Licence”.

An “Abstraction Licence” is “environmental information” for the purposes of EIR as it comprises an administrative measure on the state of the elements of the environment (i.e. water), and the state of human health and safety including contamination of the food chain. It follows that an Abstraction Licence number would similarly be captured.

The Secretary of State has published a Direction under section 208 of the Water Industry Act 1991 titled ‘Security and Emergency Measures (Water and Sewerage Undertakers and Water Supply Licences Direction 2022’ (“the Direction”) [OB-A133]. The Direction was considered requisite and expedient in the interests of national security and for the purpose of mitigating the effects of any civil emergency. AWL must comply with the Direction in relation to the supply of water to the consuming public in its area. It includes the duty [at article 7 and 8] to identify and assess any security risks (including long term risks) to the provision of its water supply, its asset base and supporting infrastructure, and to put in place measures to avoid or, if this is not possible, mitigate those risks.

In 2012, DEFRA published guidance for water companies (including AWL) on the level of detail that can and cannot be published on borehole locations (“the 2012 Guidance”).

AWL considers that “the fact of industry guidance on Boreholes, and the categorisation of levels of “Attack” shows that the threat of attack is real and requires to be addressed and mitigated”. [OB – D207]

On 25 July 2024, AWL provided the Appellant with (i) a list of chalkstream boreholes with a site code, 4-digit national grid reference, Environment Agency WBID reference and the Water Body name given by the Environment Agency; (ii) a “Groundwater Abstraction Sites” map identifying AWL’s supply boundary and borehole locations

It is undisputed that the requested information is “environmental information” to which the EIR applies. The panel agrees.

Throughout our considerations, the Tribunal has kept well in mind that there is a presumption in favour of disclosure under EIR.

For regulation 12(5)(a) to be engaged in this case, disclosure of the requested information must adversely affect the listed matters, which in this case is either national security or public safety. The threshold is whether it is more probable than not that the alleged harm would occur if the withheld information were disclosed.

Neither “national security” nor “public safety” is defined in EIR. However, the term “national security” arises in other legislation and was considered by the House of Lords in the immigration case of Secretary of State for the Home Department v Rehman [2001) UKHL 47, where Lord Slynn of Hadley said: [OB – A105]

Clearly, national security includes threats posed by terrorism. This can include a “mosaic” effect, where seemingly harmless information may assist terrorists or those with malcontent when pieced together with other information they possess or could obtain.

“Public safety” is usually taken to cover hurt or injury to one or more members of the public. It does not need to be harm to the public as a whole.

There is an overlap between national security and public safety in cases such as this, where it is claimed that there would be an increased risk to water supply from disclosure.

The risk identified by AWL is the precise location of boreholes being pinpointed and exposed to damage in the wrong hands with a resulting threat of harm to national water supply infrastructure and/or contamination of public water supplies.

Our attention is drawn by both Respondents to another First-tier Tribunal decision in Owen Boswarva v Information Commissioner and Environment Agency of 13 July 2021 (Appeal refs. EA/2020/0332 & 0333). The Tribunal in that instance accepted at [30-31] that the “release of detailed information about large reservoirs [including information about maximum flood outlines, depth and speed] would adversely affect national security or public safety. This is because this information can be used as the basis for a terrorist attack, which would put the public in serious danger…”. This decision is not binding upon us, but we have no reason to disagree with the logical finding. However, it is not on all fours with this case.

Unlike Boswarva, compliance with the Request would not result in the release of detailed information about the precise location of a water source. What can be gleaned from the Abstraction Licence number is the specific number for the borehole, that the borehole has a purpose for public water supply, and the address of the licence holder. These details have emerged from the further information sought by the Tribunal and do not appear to be details before the Commissioner at the time of his decision.

In short, the concerns expressed by AWL emanate from identification of the precise location of boreholes. Yet, that information is not revealed from the Abstraction Licence number. As explained by AWL, the number enables a request to subsequently be made to the EA for disclosure of the Abstraction Licence. To that extent, the requested information holds the key to applying to access further information about the Abstraction Licence from the EA. (We are aware that Abstraction Licenses are held on a searchable public register, and that an Abstraction Licence could be requested without the licence number, albeit potentially more difficult to identify particular licences, as the Appellant indicates).

The Tribunal has considered the wider picture and the possible “mosaic” effect. In doing so we have looked at the risks from the viewpoint of someone with malign intent. Ultimately, however, the Tribunal does not agree that there is a causative link between disclosure of the withheld information and an adverse effect on national security or public safety.

From AWL’s own case, divulging the licence abstraction numbers would not of itself pose a risk to national security or public safety. The possible risk only arises from the steps that may be taken thereafter. Specifically, and as AWL identifies, the focus is on what happens when the licence abstraction numbers are then used to request the actual Abstraction Licence from the EA. In our view, should such a request be made to the EA then it will be the responsibility of the EA, as a public authority bound by the EIR, to decide if the exemption in Regulation 12(5)(a) applies to disclosure of the particular abstraction licence requested. Logically, that will be the critical decision-making stage in terms of considering whether there is a risk from disclosure to national security and public safety.

AWL has a duty under the 2020 Direction to have regard to any risks to national security (Article 3), to identify and assess risks to the provision of its water supply (Article 7) and to put in place measures to avoid or (if not possible) to mitigate those risks (Article 8). We recognise that AWL has identified a potential risk if abstraction licences are disclosed. It seems to us that AWL has sought to discharge those duties by refusing the licence numbers, which mean that further requests cannot then be made to the EA for the actual abstraction licence or information from it. Essentially AWL is expressing a concern that the EA will not properly consider national security concerns if requests about abstraction licences are made to it under the EIR. No evidence has been provided to us to indicate that AWL’s fears about how the EA will deal with such requests is well-founded

It is true that the EA is not a water company bound by the 2020 Direction (set out above), but it is bound by the EIR in just the same way as AWL. It would be incorrect to say otherwise. The EA is a national agency for which issues of national security will be to the fore when requests for information are made. Crucially, if it receives a request for the Abstraction Licences, then the EA can seek to rely on the same exemptions as those available to AWL, which of course include the national security exemption in regulation 12(5)(a). The DEFRA Guidance can still be considered. The same appeal procedure would apply.

AWL may fear that the EA would not be robust and reveal too much information, to the extent that AWL feels justified in not disclosing the information that would allow a further request to be made to the EA. It is not compelled to take that approach. If it has such fears, then one of the measures it could put in place in pursuance of its duties under the 2020 Direction is to notify the EA when disclosure of abstraction licence numbers has occurred and set out its concerns about further disclosure if further requests are made to the EA.

The Tribunal concludes that the exemption in regulation 12(5)(a) of EIR is not engaged by this particular request. It may be that national security concerns would be raised if further requests are made to the EA, but that is a matter for the EA to consider if and when such requests are made.

In reaching our view, we have not been influenced by the number of other water companies that have released abstraction licence numbers. We accept that different consideration may be relevant for each water company. Those decisions of other companies did not set any form of precedent. We are satisfied that each company will have undertaken its own assessment.

The Tribunal is keen to emphasise that it fully recognises the importance of protecting national security and public safety. Indeed, it is not difficult to see how the consequences of vandalism or sabotage to a borehole could be catastrophic with widespread public harm. However, in our view the potential risks do not arise from the disclosure of licence abstraction numbers as requested in this case.

For all those reasons, the Tribunal concludes that AWL was not entitled to rely upon regulation 12(5)(a) to withhold the requested Abstraction Licence numbers.

We allow the appeal and issue a substituted decision. In addition, we are alive to the possibility of risks if further requests are made to the EA, and we direct AWL to provide the EA with a copy of this Decision.