Lucas Amin v The Information Commissioner

the withheld information was generated in preparation for, or as an outcome of, private meetings between the Secretary of State for Wales and representatives from various businesses;

summary details of these meetings have already been published on the GOV.UK website in accordance with government transparency requirements;

topics discussed at these meetings were of genuine concern to the business interests of the private companies and to the policy interests of government departments and cannot be classed as trivial. There is no evidence that comprehensive accounts of the meetings have been publicly disclosed and therefore the information retains the necessary quality of confidence; and

the withheld information includes material which was shared under an explicit expectation of confidence, namely briefing material provided by the Department for Energy Security and Net Zero (DESNZ) which was not to be shared at the meeting. The withheld information also includes information pertinent to the business interests of several private companies which was shared by the companies under an implied expectation of confidence.

the withheld information concerns the commercial interests of Aston Martin Lagonda, Toyota, Shell and Hynet North West which is not only confidential but also has commercial value. The Wales Office therefore took measures for it to remain private to protect the legitimate economic interests of those companies;

because summary details of the meetings have already been disclosed in the Wales Office's transparency returns, disclosing additional information exceeds transparency requirements and risks jeopardising the commercial interests of the private sector counterparts of the Wales Office; and

it is not in the public interest to disclose information held under a reasonable expectation of confidence in circumstances where such disclosure has the potential to harm the economic interests of the confider. To disclose would damage the relationship of trust between the Wales Office and the named companies (and potentially similar companies) which would stem the flow of such information in future, to the detriment of the ability of government departments to meet their economic goals.

EIR have an underlying element of openness and transparency which disclosure of the withheld information would endorse;

disclosure of this information would provide the public with a greater understanding of business engagement at the Wales Office, thus enabling and enriching public debate on this subject. Furthermore, release would encourage greater accountability and increase public confidence in the integrity of decision-making in this area; and

private companies seeking government support should expect some information concerning the engagement process to be released into the public domain. Such disclosure would promote transparency, encourage competition and ultimately help achieve the best value for money in the expenditure of public funds.

noted that the Wales Office had itself weighed the factors in favour and against the release of the requested information, and found the public interest favours non-disclosure. The Wales Office considered that disclosing the information into the public domain would breach the expectation of confidence under which the information was provided and would be to the detriment of both the private and public sector bodies to whom the information belongs; and

considered the public interest arguments himself. He accepted a public interest in transparency and accountability, noting a competing public interest in the relationship of trust between the Wales Office, DESNZ and private companies to enable them to work together to meet their economic goals. Disclosure would adversely affect this. He recognised that the Wales Office had already published summary details of the meetings and this should go towards satisfying the public interest in the topics discussed without disclosing information provided in confidence.

third parties would not expect a public authority, with whom they have shared sensitive information, to disclose the entirety of that information to the public under EIR, bearing in mind the legitimate exceptions from disclosure for certain information;

the Wales Office submitted that disclosing information beyond that which has already been published "risks jeopardising the commercial interests of the private sector counterparts" and more likely than not would cause some harm to an economic interest;

the Wales Office reached the right balance by publishing summary details of the meetings to enable LA and others to know that a meeting took place, the purpose of the meeting, who attended and the date it took place whilst withholding the granular information concerning those meetings in line with the reasonable expectations of the meeting attendees;

as for the allegation of "greenwashing", LA provided no evidence of claims made in public by the relevant companies to support any reasonable suspicion of wrongdoing;

the fact that private companies provided information to the Wales Office voluntarily strengthens the argument that disclosing the withheld information would damage the relationship of trust between them, the Wales Office and DESNZ and potentially others too; and

overall, the Commissioner properly identified, evaluated and weighed each of the public interest factors relied on. He did not err in conducting this exercise as alleged or at all.

the Respondent (the Wales Office) is a public body acting under statutory authority conferred on it by parliament;

the third parties in this case were aware of the onerous EIR regime which includes a presumption in favour of disclosure: exceptions must therefore be construed strictly as "the threshold to justify non-disclosure is a high one" (Archer v IC and Salisbury DC (EA/2006/0037) IT 9 May 2007);

persons supplying information to a public authority, otherwise under a duty, do so subject to public authorities' obligations to disclose under EIR;

all parties therefore understood that EIR might require disclosure of the information shared at their meetings, yet none of them made any express request for confidentiality;

as Megarry J (as he then was) said in the Coco case (final para. on p.420), "However secret and confidential the information, there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential";

the information provided by the car manufacturers was part of a wider consultation exercise on the ZEV mandate. It is a long-established principle of central government consultations that at least a summary of consultation responses will be published;

moreover, the consultation document for the ZEV mandate consultation expressly stated under the heading "Freedom of Information" that "Information provided in response to this consultation...may be subject to publication or disclosure in accordance with [FOIA] or [EIR]. If you want information that you provide to be treated as confidential...it would be helpful if you could explain to us why you regard the information you have provided as confidential...but we cannot give an assurance that confidentiality can be maintained in all circumstances..."';

all the private entities engaging with the Wales Office were doing so as volunteers seeking to influence government policy; and

all the third parties who met the Secretary of State were aware that some details of the meetings would be published by the government on the GOV.UK website in accordance with the government's general transparency obligations.

the presumption of disclosure under EIR 12(2) creates a high threshold to justify non-disclosure yet in this case there is no detailed reasoning or evidence, merely assertion of general factors;

contrary to the Commissioner's conclusion in his decision notice, disclosure of the information would not harm the relationship of trust between the Wales Office, DESNZ and the private companies. This is because the companies were well aware that government departments may need to disclose environmental information they receive: companies therefore take a calculated risk that the information they provide may be disclosed, and weigh it against the potential benefits of engaging with opportunities to influence the government;

the suggestion that these companies - or others in future - might be deterred from engaging with government is really another version of the "chilling effect" argument previously rejected by tribunals: for example, in Davies v the Commissioner and the Cabinet Office [2019] UKUT 195 (AAC), the Upper Tribunal observed (at para. 25) "There is a substantial body of case law which establishes that assertions of a 'chilling effect' on...effective conduct of public affairs are to treated with some caution...". In reality, private companies such as those in this case will continue to meet with ministers and volunteer information when it is in their commercial interests to do so to seek to influence government policy. Companies like these are not naive individuals but sophisticated, well-advised commercial operators who can be assumed - to the extent they did share confidential information - to have taken a calculated risk that the potential rewards were worth the possible disclosure of information they shared;

in this case there is no evidence that disclosure of the information would lead to less information-sharing by private third parties, nor even if it did that this would prove detrimental to the government. Nor is there any evidence that less information-sharing would reduce government's achievement of its economic goals since there is no evidence that the government's economic goals and those of the private companies are aligned. The decision notice relies on mere assertions to this effect;

private companies can - and indeed the car manufacturers in this case were advised to - expressly assert the confidentiality and sensitivity of the information they provided to government, yet did not do so;

the Wales Office provided no evidence that commercial interests would be jeopardised, merely asserting a 'risk' of such which should be given little weight. Moreover, the higher the level of the information shared, the less impact on commercial interests - and in this case there is no evidence of commercial details such as to be of value to competitors having been shared;and

the summary details of the meetings so far disclosed explain only the subject matter, nothing more, so do not satisfy the requirements of transparency and accountability in an area of strong public interest.

providing the public with greater understanding of business engagement at the Wales Office;

increasing accountability and public confidence in the integrity of decision-making in an area of crucial importance to the public, including the extent to which CCUS and e-fuels really assist with reducing climate change and its impact when the companies in question have themselves contributed to it: as LA says in his witness statement "Is this process fair and reasonable? Are the interests of all stakeholders being balanced accordingly?";

allowing the public to see whether or not claims made in public by private companies regarding the scale and extent of their net zero transition activities reflect what they are telling the government ("greenwashing") and therefore whether such companies' public and private positions are consistent;

allowing the public to see whether untested or poorly tested technologies are ready for deployment, viable and affordable (particularly in the context where taxpayers are being asked to contribute to such technologies through subsidies and incentives);

the overwhelming public interest in tackling the existential threat of climate change, the reason behind the ZEV mandate and other net zero policies. Many of the private companies in this case can reasonably be considered to have contributed to climate change through their emitting activities. It is of strong public interest to establish whether ministers were in private urged to change their policies in ways which favoured the companies urging this;

as for the specific meetings themselves, the published summaries provide no understanding of what was discussed yet:

Some information was provided by the Wales Office in response to LA's request.

The withheld information is contained in the Closed bundle.

With the exception of DESNZ, none of the parties providing information to the Wales Office expressly stated that the information shared before, during or after the meetings was confidential nor indicated any expectation of confidentiality.

The Wales Office and the Commissioner rely on the common law duty of confidence.

The consultation document to which both car companies (Toyota and Aston Martin) responded stated in terms (summarised in para. 33(g) above) that information provided in response to the consultation might be subject to publication or disclosure under EIR.

As regards the meetings with Toyota and Aston Martin, information by those companies was volunteered as part of a wider consultation exercise on the ZEV mandate.

Neither car company - as invited by the consultation document - gave any reason for regarding the information they provided as confidential.

All the third parties (except DESNZ) are sophisticated commercial entities and aware that the Wales Office is not only subject to disclosure obligations under EIR and FOIA but also that some details of the meetings would be published on the GOV.UK website under the government's general transparency obligations.

Certain information about the various meetings was indeed published on the GOV-UK website, but detail of the matters discussed was not included.

With the exception of DESNZ, information was shared by the third parties with the government minister (whose department is well-known to be subject to EIR/FOIA duties) without any express reference to confidentiality.

In the absence of any evidence to the contrary, none of the third parties was consulted by the Wales Office as to whether they consented to disclosure of the information they had provided and, if not, whether their views actually demonstrated that they regarded the information as confidential.

The Commissioner's own "Regulation 16 Code of Practice - discharge of obligations of public authorities under the EIR" with reference to the application of EIR 12(5)(e) expressly states (on p.12) "...it will not be sufficient for the public authority to speculate about possible harm to the third party's interests without some evidence that the arguments put forward actually reflect the third party's concerns. The public authority should therefore consult the third party unless it has prior knowledge of their views..."

In the absence of any evidence to the contrary, no third party, including DESNZ, was consulted by the Wales Office - nor did the Wales Office have any prior knowledge of the third parties' views - about any legitimate economic interest of theirs which would be harmed by disclosure.

No third party, including DESNZ and the Wales Office, has volunteered any evidence that their legitimate economic interests would be harmed by disclosure.

Both energy companies (Shell and Hynet) are, or expect to be, beneficiaries of large publicly funded incentives and subsidies for developing new environmentally friendly technologies such as CCUS and hydrogen-based fuels.

the threshold to justify non-disclosure under EIR is a high one given the statutory presumption in favour of disclosure;

under the Coco test, the information must not only have the "necessary quality of confidence" but the confidentiality must protect a legitimate economic interest which would, on the balance of probabilities, be harmed by disclosure. However, in this case, neither the Wales Office nor the Commissioner has complied with the Regulation 16 Code of Practice about consulting third parties to establish what harm to their legitimate economic interests would be harmed by disclosure of the withheld information;

As regards each of the third parties specifically:

DESNZ

Toyota and Aston Martin

Shell and Hynet

As already mentioned, there is a high threshold to justify non-disclosure under EIR given the statutory presumption in favour of disclosure.

The public interests cited by the Commissioner against disclosure are:

However, the panel is unconvinced by these arguments because:

The panel finds far more persuasive LA's submission that private entities take a calculated risk when engaging with ministers and government departments - whom they know are subject to particularly onerous disclosure obligations under EIR - that information they share will be publicly disclosed. We consider it plausible, as LA argues, that this is a price that commercial entities are prepared to pay for privileged access to ministers and the opportunity to influence public policy which impacts upon their economic interests.

The panel finds compelling the factors in favour of disclosing the information advanced by the Appellant as summarised in para. 39 above.