Mark Steele v The Information Commissioner & Anor

This is an appeal against Decision Notice referenced IC-316125-K1B7(“the Decision Notice”) dated 13 November 2024, brought pursuant to s57 of the Freedom of Information Act 2000 (“FOIA”).

By the Decision Notice, the First Respondent (“the Commissioner”) decided that, on the balance of probabilities, the Second Respondent (“TfL”) does not hold information responsive to requests made of TfL by the Appellant under the Environmental Information Regulations 2004 (“EIR”).

In short order: the Appellant’s requests for information relate to the Automatic Number Plate Recognition (“ANPR”) cameras used by TfL to enforce the Ultra Low Emission Zone (“the ULEZ”) in London (“the ULEZ cameras”). The Appellant believes that the ULEZ cameras deploy a system of fusion technology mixing radio detection and ranging (“Radar”), light detection and ranging (“Lidar”), and vision sensors, such technology being battlefield-derived, capable of undertaking mass surveillance, and causing damage to humans and the environment

The Tribunal’s decision is unanimous.

The Request was made in two parts.

The first part of the Request was made on 17 February 2024, as follows:

“1.

Can you provide the Environmental risk assessment data over the deployment of the ULEZ Radar Guns (Camera's) extension.

2.

The actual number of Radar Guns (Camera's) deployed across the capital

3.

Technical details that Include what fusion type technology is employed by the Guns for scanning vehicles & pedestrian movements. Including the specifics of the Infra Red array emissions including other lower spectrum outputs of the YUNEX hardware.

4.

Classification of the light emitting diode array.

5.

Can you provide the insurance policy covering TFL for harms caused to the environment and property including human exposures from these interrogation radiation sources

6.

Can you also provide me with the details of the organisations who are receiving the data analytics from the mass surveillance of London experiment.”

The second part of the Request, also made on 17 February 2024, was as follows:

“Can you provide the Environmental risk assessment carried out over the deployment of the ULEZ Radar Guns (Camera's) to Include what fusion type technology is employed by the Guns for scanning vehicles & pedestrian movements. The specifics of the Infra Red array emissions including other lower spectrum outputs of the UNIX hardware.

Also can you provide the insurance policy covering TFL for harms caused to the environment and property including human exposures from these interrogation radiation sources

Can you also provide me with the details of the organisations who are receiving the data analytics from the mass surveillance exercise.”

On 16 April 2024, TfL provided a single response to both Requests, setting out each individual request and providing its answer in turn, as follows:

“1.

Can you provide the Environmental risk assessment data over the deployment of the ULEZ Radar Guns (Camera's) extension.

Firstly, I would like to clarify we use ANPR cameras to enforce the ULEZ, not radar system.

Please see the link to the Integrated Impact Assessment (IIA), which considered environmental impacts of the ULEZ: London-wide ULEZ Integrated Impact

2.

The actual number of Radar Guns (Cameras) deployed across the capital

There are more than 3700 cameras in place across the London-wide Ultra Low Emission Zone.

3.

Technical details that Include what fusion type technology is employed by the Guns for scanning vehicles & pedestrian movements. Including the specifics of the Infra Red array emissions including other lower spectrum outputs of the YUNEX hardware.

We are unsure what you mean by “fusion type” technology. The ANPR cameras use vision-based detection.

On 18 April 2024, the Appellant sought an internal review. In so doing, he said this in relation to TfL’s response to his numbered questions 1 and 3 of the first part of the Request: “Neither of these comments are true as the YUNEX, SEIMANS Radar guns do use Fusion RADAR/LiDAR not only vision based detection and the reason I have requested clarity over the terminology and the EIA Environmental impact assessment due to the significant environmental hazard and harms caused by Infra Red Lidar Radar technologies”.

On 13 May 2024, TfL responded to the Appellant’s request for an internal review by reference to the Appellant’s comments in relation to TfL’s response to his numbered questions 1 and 3 of the first Request: “... we are unable to ascertain what it is you are asking for with regards to "fusion type” technology and subsequently we cannot identify any information that is held within this scope. As advised the ANPR cameras use vision-based detection which we use to enforce the ULEZ. We do not use a radar system.”

On 5 June 2024, the Appellant responded to TfL. He said this: “for your information Fusion technology is a environmentally toxic radiation mix of RADAR LiDAR and Vision system and the reason I have requested the Environmental impact analysis from the Hardware that the GLA and TFL have deployed across an unsuspecting population and the dangers posed to them their property and the environment. It is extremely concerning that you state you have no knowledge of Fusion technology or the fact that TFL have deployed it including Radar across the transport network. If I have discovered this including the contracts for this fusion type technology. Can you explain why TFL in their response have attempted to deceive me?”

TfL did not respond.

The Appellant complained to the Commissioner. The Commissioner investigated. Attempts at informal resolution of the Appellant’s complaint were unsuccessful.

Prompted by the Commissioner, TfL elaborated for the Appellant’s benefit some of its responses to the Request. In so doing, TfL confirmed that:

On 8 October 2024, the Commissioner wrote to the Appellant, noting TfL’s explanation that the requested information is not held because it concerns technology which TfL does not use. The Commissioner indicated that any Decision Notice he might issue was likely to accept that TfL does not hold the requested information, on the balance of probability. The Commissioner indicated that in those circumstances, a Decision Notice would serve no useful purpose.

The Appellant informed the Commissioner by telephone that TfL was lying to the Commissioner. The Appellant provided further submissions and material to the Commissioner.

The Commissioner resolved to issue a Decision Notice.

By the Decision Notice, the Commissioner decided that TfL does not use the technology on which the Request is predicated and, consequently does not hold the requested information.

The Commissioner decided that while Regulation 12(4)(a) EIR is “technically” subject to both the public interest test and the presumption in favour of disclosure provided for by EIR, he could see no public interest argument capable of requiring a public authority to disclose information it does not hold.

By an undated Notice of Appeal, which we understand to have been filed on or around 21 November 2024 with exhibits, the Appellant submits, in summary:

By way of remedy, the Appellant asks the Tribunal to:(i) “substitute a notice that orders the public authority to carry out an Environmental impact assessment over the actual Fusion technology”; (ii) “Order the authority to disclose the outcome of the experimental studies and the total actual number of Fusion technology Environmental data harvesting nodes and measurements of the accumulative radiation levels”; and (iii) “Require the Authority to carry out a risk assessment in regards the increased radiation effects on property to include metal derived medical implants”.

By a Response to the appeal dated 9 January 2025, the Commissioner resists the appeal. The Commissioner accepts that TfL does not hold the requested information because TfL is responsible for the APNR technology in question and maintains that the Request is based on a false premise. The Commissioner has not identified any evidence of TfL attempting to mislead the Commissioner and does not believe that TfL has any motive to withhold any responsive information. The Commissioner stands by the Decision Notice.

By a Response to the appeal dated 27 January 2025, TfL submits, in summary, that it does not hold the requested information because it does not use the technology referred to by the Appellant. TfL denies any attempt to mislead the Commissioner or conceal information.

By a Reply to TfL’s Response dated 11 February 2025, the Appellant reiterates and elaborates the arguments in his grounds of appeal.

We had before us a bundle of 2076 pages. The majority of that material was supplied by the Appellant.

The Commissioner did not attend the hearing.

We read a skeleton argument from each of the Appellant and TfL.

The Appellant filed a witness statement for the hearing. TfL cross-examined the Appellant on aspects of his witness statement.

TfL called evidence from Mr Wayne Gainsburgh, a Senior Operational Delivery Manager at TfL, with overall responsibility for managing the operational delivery of TfL’s Road Charger Using Schemes. The Appellant cross-examined Mr Gainsburgh at length.

The Appeal was initially listed for a half-day hearing on 25 June 2025. It became evident that a half-day hearing was not going to be sufficient to enable the Appellant to complete his cross-examination of Mr Gainsburgh and develop his oral submissions. Accordingly, the Tribunal listed the matter for a further half-day hearing on 14 July 2025.

EIR give effect to EU Council Directive 2003/4/EC on public access to environmental information.

Regulation 2 (1) EIR defines environmental information as follows:

“any information in written, visual, aural, electronic or any other material form on—

(a)

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b)

factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c)

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

(d)

reports on the implementation of environmental legislation;

(e)

cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f)

the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);”

Regulation 3 EIR provides in relevant part:

“(2)

For the purposes of these Regulations, environmental information is held by a public authority if the information—

(a)

is in the authority’s possession and has been produced or received by the authority; or

(b)

is held by another person on behalf of the authority.”

Regulation 12 EIR provides for exceptions to the duty to disclose environmental information and provides in relevant part:

“(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…”

Regulation 14 EIR provides in relevant part:

“(1)

If a request for environmental information is refused by a public authority under regulations 12(1) or 13(1), the refusal shall be made in writing and comply with the following provisions of this regulation.

(2)

The refusal shall be made as soon as possible and no later than 20 working days after the date of receipt of the request.

(3)

The refusal shall specify the reasons not to disclose the information requested, including—

(a)

any exception relied on under regulations 12(4), 12(5) or 13; and

(b)

the matters the public authority considered in reaching its decision with respect to the public interest under regulation 12(1)(b) or, where these apply, regulation 13(1)(b) or (5A)…”

The import of s58 FOIA is that the right of appeal to the First-tier Tribunal (whether under FOIA or EIR) involves a full merits consideration of whether, on the facts and the law, the public authority’s response to the Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90]. The Tribunal has jurisdiction to decide, de novo on the merits, whether the Commissioner’s decision is in accordance with the law.

The Tribunal’s role is thus effectively confined to a review of the public authority’s decision to determine the lawfulness of that decision. It is not open to the Tribunal to order the remedies sought by the Notice of Appeal.

By his witness statement, the Appellant attested to the following matters, in summary:

By his witness statement, Mr Gainsburgh attested to the following matters, in summary:

By his closing oral submissions, the Appellant submitted, in summary, that TfL has set out to misdirect and deceive the Tribunal and the public: the fusion technology deployed by TfL is falsely presented as promoting a clean air zone when, in fact, TfL is using that technology to create both a geo-fence in the form of a digital prison and a mass kill zone.

We are satisfied, and the parties accept, that the requested information is environmental information. We find that it is environmental information within the meaning of Regulation 2 (1) (b), (c) and (f) EIR.

The issue before us is whether TfL holds the requested information.

We find that, on the balance of probabilities, TfL does not hold the requested information. We are not persuaded that any of the evidence adduced by the Appellant demonstrates that TfL operates any equipment or technology of the types described by the Appellant.

We have reviewed all the material filed by the Appellant in support of his submissions. Neither any single item nor any single item in conjunction with any other item in that material, suggests to us that TfL operates the equipment or technology alleged by the Appellant.

We address below certain of the key items of evidence identified by the Appellant, and why we are not persuaded that they indicate that TfL uses such equipment or technology.

First, the Appellant showed us a publication by an entity called Yunex Traffic, which we understand to be an emanation of the Siemens group, which indicates the following: TfL has developed in partnership with Yunex Traffic, which describes itself as a provider of intelligent traffic systems, a product called FUSION; FUSION is a new adaptive traffic control and signal optimisation solution; FUSION uses multimodal data sources to optimise signalised junctions and pedestrian crossings, using an algorithm to work with different urban traffic control systems; Yunex Traffic and TfL are uniquely using a “Living Laboratory” to test, validate and optimise FUSION, consisting of traffic intersections in London.

We have no reason to consider that these stated matters are untrue or incorrect. None of the description of FUSION in the material we have described leads us to be believe that any part of it is to be conflated with, or is, technology of the type described by the Appellant. We understand that, put simply, FUSION synchronises traffic signals. We have been shown nothing which persuades us that FUSION is part of any covert mass surveillance programme.

We consider that the Appellant has confused the brand name of a traffic system deployed by TfL, FUSION, with fusion technology itself.

In any event, we accept TfL’s evidence that FUSION is not part of the ULEZ scheme, with which, as the Appellant accepted in cross-examination, the Request is concerned.

Second, the Appellant showed us some photographs, whose provenance is not identified. The first photograph is of what we understand to be a static ULEZ camera in an unspecified location. The second photograph is of what appears to be an ULEZ camera mounted on a police vehicle in an unspecified location. The third photograph is of a traffic light in an unspecified location to which have been affixed three items, which the Appellant identifies as a unit for phased array Radar, a unit for Radar, and a unit permitting infra-red camera vision.

The Appellant points us to the different appearances of the static and the mounted ULEZ camera. That difference does not suggest to us that either of the cameras is capable of the effects for which the Appellant contends. The Appellant has adduced no evidence to support his contention that any of the three units appearing on the photograph of the traffic light is capable of the effects for which he contends.

There is nothing in the photographs the Appellant has shown us which persuades us that, as the Appellant suggests, the cameras depicted contain the technology or conduct the mass surveillance asserted by the Appellant.

Third, the Appellant has shown us a photograph, whose provenance is not identified, of what he says is part of the hardware of a dismantled ULEZ camera. The Appellant directed us to elements of the photograph which he says indicate, amongst other things: 24 category 4 lasers marked by a laser symbol, a laser diode surrounded by thermal management vias, an IEEE (Institute of Electrical and Electronics Engineers) laser symbol, input and output cables.

When the Appellant directed Mr Gainsburgh to these elements of the photograph, Mr Gainsburgh was unable substantively to comment on them as individual elements, not least because, as he said and we accept, he has never had cause to examine the internal structure and components of an ULEZ camera.

Mr Gainsburgh’s understanding is that the infrared LED array used in ULEZ cameras is classified under IEC (International Electrotechnical Commission) 62471 Risk Group 1, which is considered low risk in terms of exposure.

The Appellant argues that the array should, in fact, be assessed under IEC 60825-14 for laser diodes, not IEC 62471 for LEDs. The Appellant explained to us that the photograph shows multiple laser diodes arranged in phased arrays which emit infra-red radiation, which is more hazardous than standard LED illumination. He explained that such radiation, invisible to the eye, falls into a wavelength range which can cause injury to the retina with initial symptoms of cataracts, and is used for biometric, security access, and facial recognition; radiation in this range is strongly absorbed by water; it is completely reflected by metallic surfaces; and it would enable Internet of Things as well as transcranial neuro strike type weapons systems. The Appellant says that the presence of a laser hazard symbols on the hardware proves that it should be regulated under laser safety standards.

We have noted that the infra-red warning symbol described in the Sicore II operation handbook which is accompanied by a warning which reads “IR emitted from this product Do not stare at operating lamp”, differs from the symbol which appears in the photograph of what the Appellant tells us is part of the hardware of a dismantled ULEZ camera, that symbol apparently representing a laser hazard.

Absent any evidence, however, of the provenance of the hardware shown in the photograph or other evidence indicating that it is, in fact, part of an ULEZ camera, and absent any independent or expert evidence of the matters alleged by the Appellant in relation to the component parts of the item shown, including the symbols, we are unable to accept that the photograph indicates an ULEZ camera’s use of, or the capability to use, hazardous lasers.

Fourth, the Appellant showed us a three-dimensional image of a Siemens camera, which he said is a “Siemens SICOR II Lidar”. He directed us to features in that image which he says are aluminium heat systems with cooling capabilities, and stereoscopes which he says are used in battlefield technology.

We are not persuaded that there is anything in that image which establishes that an ULEZ camera has the components the Appellant describes or that it has the capability or is used for the purposes for which the Appellant contends.

Fifth, the Appellant showed us a technical manual for a Sicore II camera. The Appellant says it is inexplicable that there is no reference therein to the Lidar capability he describes. We consider that it is more likely than not that the manual does not refer to such capability because the camera does not have it.

Sixth, the Appellant showed us a photograph, whose provenance is not identified, of a modem card which we understand him to say has been extracted from an ULEZ camera, bearing a label saying, “Made in China”. The photograph is presented alongside a manual for a specific type of modem card which the Appellant says is made in China. The Appellant submits that this material indicates that ULEZ cameras use a Chinese modem as a mass surveillance tool for use across London.

We are not persuaded that the photograph and/or the manual indicate that a mass surveillance programme of any sort, whether backed or directed by China or otherwise, is being undertaken by or through TfL.

Seventh, the Appellant drew our attention to a publication by the Ministry of Defence, “JSP 392 Management of Radiation Protection in Defence, Part 1: Directive”, which addresses issues of radiological safety and environmental protection, and whose content is expressly addressed to all MOD sites (ships, units and establishments both in the United Kingdom and overseas) and MOD personnel. We do not consider that this document has any bearing on sites other than MOD sites and is of no application to the ULEZ. Moreover, the document relates to the use of radioactive material and X-ray equipment. We accept TfL’s evidence that neither of those is used in the ULEZ cameras.

There is no independent or expert evidence before the Tribunal of any of the matters asserted by the Appellant.

The Appellant filed with the Tribunal a document headed “Independent investigation into the potential risk of the given Lidar detector” and dated 20 March 2025. The author of the document is not identified. The Appellant told us that the author wished to remain anonymous although he might be able to persuade them to disclose their name.

The scope and purpose of the document is stated as follows: “This investigation has been conducted by a professional independent electronics embedded design engineer with over 20 years experience, 5 patents, honours degree in electronics, and a PhD in electronics, sensors and systems with Ai. It has been brought to my attention, to conduct an independent analysis of a LIDAR assembly to determine whether or not the device meets the required regulatory safety standard for a Class 1 (infrared) IR LED assembly.” The document is addressed to the same photograph of the ULEZ camera hardware we have described at paragraph 53 above, focusing on LED use and effect. The author asserts that the output from the LEDs apparently shown by that photograph would exceed established safety standards. The Appellant told us that he does not rely on the document as an expert report, rather as an “add-age” to the material he has filed.

We do not, in any event, accept the document as expert evidence. It bears none of the required hallmarks of independent expert evidence, for example: the full name and detailed qualifications of the author; statements of the expert’s appreciation of their role as expert; and copies of communications to the expert from those instructing them. Even were those matters to be remedied, having carefully reviewed the content of the document, we do not consider that it comes close to indicating the range of matters which found the Appellant’s allegations against TfL, and, by extension, it does not assist us in our determination of whether TfL is more likely than not to hold the information which is the subject of the Request.

The remainder of the evidence filed by the Appellant seems to us to be a random collection of material, including disparate medical, scientific and military journals, and technical manuals, with no readily discernible, coherent thread through them to support any part of the Appellant’s case as to the technology he claims is deployed by TfL. Again, by extension, none of that material assists us in our determination of whether TfL is more likely than not to hold the information which is the subject of the Request.

We understand that TfL directed the Appellant to a copy of a London-wide ULEZ Integrated Impact Assessment dated 17 May 2022 prepared by Jacobs UK Limited. That report addressed the potential positive and negative impacts of the proposed expansion of the ULEZ to outer London on the environment, equalities, health and the economy. There is no reference we can see in the section of that report addressed to the environment (or, indeed, elsewhere) which addresses any of the radiation or emissions from ULEZ cameras for which the Appellant contends. The Appellant says that because the report contains no reference to address what the Appellant describes as the number and technical details of the radiation pollution emitters and emissions of the type identified by the Appellant, it is fatally flawed. We consider it more likely than not that the report does not reference such matters because they do not exist.

Viewing all the evidence in the round, we do not consider that the Appellant has adduced any independent evidence, that is to say evidence other than his own assertion, which contradicts either TfL’s account that its ULEZ cameras simply capture vehicle registration numbers using an ANPR optical system, and that the cameras themselves are equipped with infra-red LED lighting to capture images in low light conditions, or TfL’s statement that it is not possible to identify a number plate using radio waves from Radar, Lidar or other such technologies. We have no reason not to accept either proposition.

We observe that the operation handbook of the SICORE II camera system describes the camera flash as emitting infra-red classified as Risk Group 1 at a distance of 298mm, being low risk.

We further observe that the brochure for the camera describes the camera as designed to meet the following approvals:

We have no reason to consider that the operation handbook or the brochure has misstated the position.

We consider it unlikely that if the ULEZ cameras were replete with the functions and capabilities ascribed to them by the Appellant, they would have met the standards described.

It is apparent from the material before us that TfL has sought diligently to engage with the Request and to offer the Appellant appropriate advice and assistance.

We have no doubt of the sincerity of the Appellant’s belief that TfL uses the technology he describes, or of his concern about the impact of such technology. These are evident both from his meticulous preparation of written material for the appeal and from his oral submissions at the hearing. However, we have reached our conclusion based on the evidence before us. We find no credible evidence of the matters to which the Appellant refers.

In circumstances where we find, on the basis of the evidence available to us, that the ULEZ cameras do not use the technology asserted by the Appellant, such technology not in any event supporting the function or purpose of the ULEZ cameras, which is to read vehicle registrations, we find it more likely than not that TfL does not hold information responsive to the Request. Put simply, TfL cannot hold information which does not exist. TfL does not hold information within the meaning of Regulation 3(2) EIR.

Accordingly, no duty of disclosure under EIR is engaged. TfL was entitled to rely on Regulation 12(4)(a) EIR to refuse the Request.

In the circumstances of this case, where we find the requested information is not held, there can be no meaningful application of a weighing of the public interests in maintaining the exception from disclosure and in disclosing information, or of any presumption of disclosure.

The Decision Notice is in accordance with the law.

The appeal must be Dismissed.