Alan Smith v The Information Commissioner

The EIRs provide individuals with a general right of access to environmental information held by public authorities, subject to some exceptions. Regulation 5(1) provides:

“…a public authority that holds environmental information shall make it available on request.”.

The term ‘environmental information’ is defined in regulation 2(1) which, so far as is material, states:

“…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…”.

The definition of ‘environmental information’ is to be given a broad meaning in accordance with the purpose of the underlying European Authority Directive which the EIRs implement (Direction 2004/4/EC). (Footnote: ²)

Therefore, pursuant to regulation 5(1), a person who has made a request to a public authority for ‘environmental information’ is entitled to have that information made available to them, if it is held by the public authority. However, that entitlement is subject to the other provisions of the EIRs, including some exceptions and qualifications which may apply even if the requested environmental information is held by the public authority. The opening wording of regulation 5(1) (that is, the wording immediately preceding the extract of that regulation quoted above) provides:

“Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations…”.

Part 3 of the EIRs contains various exceptions to the Duty to Disclose. It is therefore important to note that the EIRs do not provide an unconditional right of access to any environmental information which a public authority does hold.

In order for some exceptions to the Duty to Disclose to be engaged, there must be some prejudice to the matters referred to in the specific exceptions. These are known as ‘prejudice-based’ exceptions. Other exceptions apply only to a particular category or class of environmental information, which are known as ‘class-based’ exceptions. Regulation 12(5)(e) is a prejudice-based exception.

Requests for ‘environmental information’ are normally dealt with under the EIRs rather than FOIA, pursuant to section 39(1) (which contains an exemption to disclosure of environmental information under FOIA).

As noted, Part 3 of the EIRs contains various exceptions to the duty to disclose environmental information which has been requested. Within Part 3 of the EIRs, regulation 12(5)(e) (confidentiality of commercial or industrial information) is applicable for the purposes of this appeal. So far as is relevant, regulation 12 provides:

“(1)

… 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.

(5)

For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—…

(e)

the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”.

Succinctly put, therefore, a public authority may refuse to disclose environmental information which is requested under the EIRs if the disclosure of that information would adversely affect the applicable confidentiality of commercial or industrial information and if, in all the circumstances, the Public Interest Test favours withholding the information.

Pursuant to regulation 12(2), a public authority must apply a presumption in favour of disclosure of environmental information.

Case law has established that this presumption serves two purposes:

The Appellant, in his grounds of appeal and subsequent submissions, made reference to various paragraphs within the Decision Notice which he disagreed with, comments about general issues regarding battery energy storage sites and to other information which had been made available regarding the Fire. However, the fundamental issue which we needed to determine was whether the Commissioner was correct in concluding, in the Decision Notice, that the Authority could rely on regulation 12(5)(e) to refuse to disclose the Withheld Information. Our decision therefore focusses on that issue.

We should note, for completeness, that the Authority (pursuant to the requirements of the Decision Notice) disclosed the Reports to the Appellant with a letter dated 22 May 2024. It has therefore not been necessary for us to address the findings of the Decision Notice regarding the application of regulation 12(5)(c) in respect of the Reports.

For completeness, we also briefly address the issue of the application of the EIRs to the Request, notwithstanding that there was no dispute between the parties on this point.

We find that the EIRs do apply to the Request. The Requested Information fundamentally relates to information shared with the Authority regarding its investigation about the Fire. Also, having regard to the nature and content of the Withheld Information, we find that it is relates to the factors affecting or likely to affect the elements of the environment and/or measures or activities designed to protect those elements (in each case, as referred to in regulation 2(1), set out in paragraph 32). Consequently, we find that the Withheld Information comprises information ‘on’ the environment for the purposes of the definition of ‘environmental information’ in regulation 2(1).

For convenience, we use the term “information” below to refer (where the context permits) to environmental information within the scope of the EIRs.

We now turn to the question of whether regulation 12(5)(e) was engaged in respect of the Withheld Information.

We agree with the Commissioner’s analysis, as set out in paragraph 13 of the Decision Notice, that the following conditions must be met if regulation 12(5)(e) is to be engaged:

If those conditions are satisfied then regulation 12(5)(e) will be engaged. In that regard, we consider that the Appellant, in his grounds of appeal, mischaracterised the position by reference to whether Cobalt Energy could dictate to the Authority what can and cannot be publicly disclosed under FOIA/the EIRs. Rather, the relevant question is whether those conditions are met. However, even if they are (and regulation 12(5)(e) is therefore engaged), then the Public Interest Test still needs to be applied.

We find that the Withheld Information is commercial or industrial in nature for the same reasons as given by the Commissioner in the Decision Notice – namely, because it is largely technical information relating to the equipment on the Site, including diagrams, technical drawings, maps and operational data regarding the Site, and the correspondence relates to that information. The Appellant also accepted that the Withheld Information would entail such material and that it would be industrial and commercial in nature.

We also find that the Withheld Information is subject to a duty of confidence in law for generally the same reasons given by the Commissioner in the Decision Notice. The Decision Notice recorded the Authority’s explanation that the relevant Withheld Information was provided to it by Cobalt Energy under an implied duty of confidence in order for the Authority to better understand the equipment in use at the Site and the causes of the Fire. Cobalt Energy also confirmed to the Authority that the relevant Withheld Information should not be disclosed.

We assessed the Withheld Information holistically and make our finding that it is confidential based on that holistic assessment. Various documents within the Withheld Information were expressly marked as being sensitive, confidential or ‘proprietary’. Whilst some documents were not so marked, we find that they had the necessary quality of confidence, because of the nature of the documents and/or the circumstances in which they were made available to the Authority. In one instance, for example, there was an express comment in an accompanying email which: (a) referred to the sensitive nature of the subject matter and the commercial implications to Orsted; and (b) specifically requested that the information was used only for the purposes of the Authority’s investigation and was not distributed to any third party, even within the fire service. We find that other documents within the Withheld Information were shared with the Authority in the same manner and under similar conditions, even if not expressly stated in respect of each document. We agree with the Authority’s submissions to the Commissioner that the Withheld Information provided to it by third parties was subject to an implied duty of confidence from those third parties.

We also find that confidentiality of the Withheld Information is required to protect a legitimate economic interest, on the basis that it contains sensitive information relating to the Site and equipment located at the Site, including technical drawings and operational data which are subject to intellectual property rights. We consider that disclosure of the Withheld Information under the EIRs would mean that competitors of Cobalt Energy and its partnerswould have access to it which they would not otherwise have (including schematics and technical data about the capabilities and efficiency of the equipment) and that this would be detrimental to the commercial interests of Cobalt Energy and its partners.

The Appellant submitted that there was no evidence of such detriment. However, we consider that it is self-evident that disclosure of information such as that we have described, which is commercially sensitive, confidential and not in the public domain, would be detrimental to the commercial interests of those to which it relates. We have also seen, in the closed bundle, comments from Cobalt Energy regarding its concerns about disclosure of the Withheld Material. For those reasons, we find that the disclosure of the Withheld Information would be detrimental to the commercial interests of Cobalt Energy and its partners.

Consequently, we concur with the analysis and findings in the Decision Notice that maintaining confidentiality of the Withheld Information is required to protect a legitimate economic interest and that such confidentiality would be adversely affected by disclosure of it under the EIRs.

For the above reasons, we therefore find that regulation 12(5)(e) is engaged in respect of the Withheld Information. Accordingly, we now turn to address the Public Interest Test.

The Public Interest Test must be assessed as at the time of the Authority’s refusal of the Request.

In considering the Public Interest Test, we first turn to factors in favour of disclosing the Withheld Information.

As recorded in the Decision Notice, the Authority stated that battery energy storage sites are being developed across the country and it recognised that there is a public interest in information being made available, having regard to public safety and related concerns. Similarly, the Decision Notice recorded the Appellant’s argument (also reflected in his submissions in the appeal) that there is a public interest in information relating to the safety of such sites being disclosed in order to highlight any identifiable risks associated with these. This would facilitate more informed planning decisions being reached regarding proposed future sites.

We agree that it is in the public interest that information relating to incidents such as the Fire is disclosed so that the public, planning departments and other interested parties can access information on the potential dangers which battery energy storage sites might give rise to.

We consider that there is a general interest in transparency regarding the cause of the Fire (including, as addressed in the witness’s statement, the need to assess any alleged inconsistences in that regard). We also consider that there is strong public interest in knowing the cause of the fire for the purposes of the future safety of firefighters and of the general public living in the vicinity of battery energy storage sites.

The Appellant’s grounds of appeal stated that the sharing of information regarding the Fire is “paramount in Academics making decisions”, but we do not consider that to be material to the public interest arguments, save as part of the wider public interests referred to above.

In his grounds of appeal, the Appellant stated that there had been confusion as to what type of batteries were at the Site, as this had not been disclosed by the Authority or Cobalt Energy. He commented that there are two types of batteries: Lithium Ferro phosphate (LFP) and Nickel Manganese Cobalt (NMC) and that LFP are widely perceived to be the safest. The Appellant considered that it was important to know which battery type was at the Site, having regard to understanding the cause of the Fire as well as ensuring that firefighters had the knowledge of this for future attendance at the Site (for safety reasons).

We consider that there is some public interest in knowing what type of batteries were installed at the Site, linked to the preceding comments regarding the public interest transparency and safety.

We now turn to factors in favour of maintaining the exception in regulation 12(5)(e).

The Decision Notice recorded the Authority’s comments that disclosure of the Withheld Information would damage the economic interests of Cobalt Energy and its partners, citing a detailed response from Cobalt Energy arguing that it should not be disclosed.

We agree that that is a factor favouring maintaining the exception. This is because there is an inherent public interest in prejudice-based exceptions, to avoid the harm to which the exception relates – in this case, under regulation 12(5)(e), damage to the economic interests of Cobalt Energy. As we have found that regulation 12(5)(e) is engaged, this of itself means that there is some public interest in maintaining the exception in that regulation.

We also find, as recorded in the Decision Notice, that there are reports in the public domain regarding the Fire, including some produced by the Authority regarding its investigation and at least one independent report, which specifically address the nature, causes and results of the Fire. For example, the Authority’s Fire Investigation Report dated 8 February 2022 identified the cause of the Fire. It stated that “The findings of this investigation conclude that this event occurred following a failure within Battery Zone 3-Rack 7 Module 6 (BZ3-R7M6) which led to a thermal runaway.” In our view, the existence of those reports is a factor which reduces the public interest in disclosure of the Withheld Information (because there is already information in the public domain - in particular, regarding the causes of the Fire) and in turn is a factor which weighs in favour of maintaining the exception.

We accept that the Fire Investigation Report dated 8 February 2022 stated that the root cause of the failure within module 6 was unable to be identified. However, it also went on to state that this was because the recovered fire-damaged batteries had undergone significant failure such that all registration of the cell architecture had been lost. It also stated that such incidents are not unusual in battery failures, where the intense heat generated during thermal runaway processes can destroy the internal cell components. Consequently, it appears to us that disclosure of the Withheld Information would not further the public interest, in the sense that it would not help identify the cause of the Fire.

Incidentally, with regard to the stated public interest in knowing what battery type was used at the Site, the Appellant stated in his pleadings that this had since been disclosed. The Appellant explained that he had made a request to Orsted in this regard on 1 July 2024 and that Orsted had replied on 18 July 2024 confirming that Nickel Manganese Cobalt (NMC) batteries were used at the Site. This was, of course, after the date of the Authority’s refusal of the Request (which is applicable for the purposes of the Public Interest Test) but we consider that this was not a material factor favouring disclosure in any event, especially given the Fire Investigation Report’s findings as to: (a) the cause of the Fire being battery failure which led to a thermal runaway; and (b) the root cause of that battery failure being unidentifiable.

The Decision Notice also recorded the Authority’s arguments that disclosure of the Withheld Information would damage its ability to investigate other incidents in the future. The Commissioner correctly stated in the Decision Notice that the primary factors in respect of the public interest in maintaining the exception must relate to the issues which the exception is designed to protect (in this case, the commercial confidentiality of the Withheld Information). The Commissioner commented that the Authority’s arguments related to its ability to carry out investigations effectively, but that he nevertheless placed some weight on those arguments, as the Authority needs to hold commercially sensitive information in confidence for its investigations.

We consider that more weight should be attached to those arguments than appears to have been given to them by the Commissioner, for the following reasons.

As we have noted, the relevant Withheld Information was provided to the Authority under an implied duty of confidence in connection with the Authority’s investigation into the Fire. The Authority explained (and we accept) that it was important that third parties were freely able to provide sensitive information in respect of its investigations without fear of that information subsequently being publicly disclosed.

We also agree with the Authority’s arguments that disclosure of the Withheld Information (which, as we have addressed, is confidential and commercially sensitive) may mean that third parties are less willing to provide sensitive information to the Authority on a voluntary basis in the future. This would obviously have adverse implications for its investigations in the future, potentially reducing its ability to identify the causes of fires. In turn, this could mean that the Authority is less informed about future safety measures, including how to appropriately handle relevant fires, which also has risk implications for the fire officers and the general public.

We consider that these factors favouring maintaining the exception are relevant in that they relate as much to the need to protect the confidentiality of information as they do to the ability of the Authority to conduct its investigations. In other words, we consider that the need to protect the confidentiality of the Withheld Information is inextricably linked to the effectiveness of the Authority’s investigations. In that regard, regulation 12(5)(a) (public safety) could conceivably have been an applicable exception in the current instance, but we do not need to consider that, given our findings in respect of regulation 12(5)(e).

Overall, considering all the circumstances of the case, we consider that there are weightier factors in favour of maintaining the exception in regulation 12(5)(e). This is based on the following reasons.

We recognise the Appellant’s arguments relating to issues of public safety. We accept that there is strong public interest argument towards the disclosure of information which would further public safety.

However, we do not consider that there are strong grounds regarding the related argument that disclosure would help to inform planning decisions regarding proposed future battery energy storage sites. Based on the information provided by the Appellant, it appears that it is already well known which battery types are considered more unsafe than others. Also, in our view, matters related to safety could be considered in future planning decisions based on information already in the public domain regarding the Fire, without needing disclosure of the Withheld Information itself.

There is already significant information in the public domain regarding the Fire, including reports which specifically address the cause of the Fire. In short, we consider that most of the public interest factors favouring disclosure are sufficiently met by the information which is already in the public domain.

Conversely, we consider that disclosing the Withheld Information would not significantly further the public interest regarding the nature and causes of the Fire, especially taking into account the information which has already been publicly made available.

As we have noted, there is strong public interest argument regarding public safety. Whilst that is a factor favouring disclosure of the Withheld Information (which we have taken into account), we also consider that the public interest in safety is also served by not disclosing the Withheld Information, for the reasons referred to in paragraph 74.

In summary, we acknowledge that there are public interest factors favouring disclosure of the Withheld Information. However, most of those factors have been satisfied by information which is already in the public domain. In contrast, the disclosure of the Withheld Information would cause the prejudice we have referred to in respect of the engagement of regulation 12(5)(e) and we consider that there are other, related, public interest factors favouring maintaining the exception. In our view, considering all the circumstances of the case, the prejudice which would be caused by disclosure of the Withheld Information outweighs the public interest in disclosure of it.

It has not been necessary for us to apply the presumption in favour of disclosure pursuant to regulation 12(2), given that we have concluded that the interests in the Public Interest Test are not equally balanced.

For the above reasons, we find that regulation 12(5)(e) is engaged in respect of the Withheld Information and that the public interest favours maintaining the exception.

We note that the Authority did not respond to the Request within the time limit prescribed by regulation 14(2). The response was issued significantly later than the required 20 working days. We therefore find that the Authority breached regulation 14(2). This point was not addressed in the Decision Notice, nor raised by the parties during the course of the appeal. However, we consider that it is appropriate to record the breach, given that undue delay can undermine the effectiveness of the EIRs and the public’s right to timely access to environmental information. However, this procedural failure does not affect our findings on the substantive issues in the appeal and consequently we do not consider it appropriate to issue a substituted decision notice.

For all of the reasons we have given, we find that the Decision Notice was correct in concluding that the Authority could rely on regulation 12(5)(e) to withhold the Withheld Information.

We therefore dismiss the appeal.