Ian Driver v The Information Commissioner

The appeal relates to a request for information made by the Appellant to Kent County Council under the Environmental Information Regulations 2004 (“EIR”). The appeal concerns the request for a consultant’s report in relation to the construction of Thanet Parkway railway station.

On 2 April 2024, the complainant wrote to Kent County Council (“the Council”) and requested information in the following terms:

“Further to your reply to my previous EIR request (ref 45121065 – see below) dated 11 March, which confirms that the Council is in possession of the final version of the Sable Leigh Consultancy report on the cost of Thanet Parkway Station, please provide me with a full version of that report.”

On 2nd August 2024 the Council issued a refusal notice. It refused to provide the requested information on the basis that Regulations 12(5)(e) (commercial sensitivity) and 12(4)(d) (material in the course of completion) of the EIR applied.

An internal review was requested and undertaken following which, on 13^th September, the Council issued its final decision, upholding the refusal.

On 24th October 2024, the Council wrote to the Appellant. It amended its position to confirm that it was now solely relying upon Regulation 12(5)(e)(commercial confidentiality) to withhold the information.

On 25^th September 2024, the Appellant filed a complaint with the Respondent.

A decision notice (“DN”) was issued on 14^th March 2025 by the Information Commissioner (“The Commissioner”).

The Commissioner determined that the Council was correct to withhold the information under Regulation 12(5)(e), though he noted that the Council’s response contravened Regulation 14(2) by failing to provide its response within 20 working days of the request.

The Commissioner considered that, while there is a general duty to disclose environmental information under Regulation 12(2), a public authority can refuse to do so if the exemption under Regulation 12(5)(e) is satisfied. He adopted the four stage test set out in Bristol City Council v Information Commissioner and Portland and Brunswick Squares Association [2010] FTT 24^th May 2010:

The commissioner concluded that those four tests were all met and moved on to consider the public interest test. Even where the exemption is met, the public authority may only maintain the exception when the public interest in doing so outweighs the public interest in the information’s disclosure.

The Commissioner found that “the disclosure of the information during negotiations would ultimately make it harder for the Council to obtain best value for tax payers”. He therefore concluded that, given the ongoing negotiations, the public interest in the exception being maintained outweighed the public interest in the information being disclosed “at the time that the request was initially responded to”.

It is worth noting, at this stage, that when the Commissioner filed its final legal argument in advance of the appeal hearing, it noted as follows:

The case referred to is Patricia O'Hanlon v Information Commissioner and Health and Safety Executive [2025] UKUT 66 (AAC). In that case, the Upper Tribunal held that the time at which to consider whether EIR exceptions and the public interest test are engaged is: “the date at which a decision as to disclosure is being made [and] …the date of the reconsideration decision” at [45].

The Commissioner argues that the relevant time, on the current case law, is therefore 13^th September 2024, when the Council treated the Appellant’s request as a request for an internal review of his similar previous request (ref 4512065).

Notwithstanding the fact that the Commissioner has filed an application for permission to appeal that decision, it remains binding on this Tribunal and the relevant date is therefore 13^th September 2025.

The grounds of appeal, as set out in the appeal notice, are:

Those were expanded upon in later written and oral submissions which are referred to below.

The Commissioner considered the grounds of appeal very briefly and simply noted that the public interest test, as set out in the DN, was not flawed. The Commissioner maintained that the public interest favoured maintaining the exception.

The Appellant set out a detailed reply to the Response.

He argued that, applying the definitions at Regulation 2(1), the report sought did constitute environmental information (albeit the Commissioner had not argued that it was not) because it constituted “cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c)” with (c) being “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”.

He went on to argue that the report was also “information on emissions” and, as such, the Tribunal must apply Regulation 12(5)(9): if the information requested is information on emissions, the stated exception (commercial confidentiality) may not be relied upon.

He argued that, at the time he submitted his original request, the station had been in operation for 8 months already and was releasing emissions into the atmosphere. Therefore it was information on emissions and the commercial confidentiality exception could not apply.

In fact the Regulations contain no Regulation 12(5)(9) but we have concluded that the Appellant must have meant to refer to Regulation 12(9) which is set out at paragraph 33 below.

We noted that the Appellant appears to have conflated arguments about whether the information constitutes “environmental information” and whether the information constitutes “information on emissions”. Notably he begins paragraph 15 by saying “the ICO stated in its decision notice that of 14 March 2025 that it did not accept that the requested information is on emissions”, then set out various arguments relating to the test for what constituted “environmental information” before concluding that the information was, itself, “information on emissions”. His argument, as we understood it was as follows:

He made no further arguments in relation to the public interest test, referring the Tribunal to his earlier arguments, set out on the appeal form.

On 9^th October 2025 the Commissioner set out an analysis of the definition of the term “emissions” and made submissions:

The purpose behind EIR is to 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”

“Environmental information” is defined in Regulation 2(1) 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);

The effect of Regulation 5(1) is that when a request for environmental information is made, a public authority is obliged to provide that information unless certain exceptions apply.

There is a presumption in favour of disclosure, as set out at Regulation 12(2).

Regulation 12(1) governs the use of exceptions:

The relevant exception in this case is provided for at Regulation 12(5)(e):

Regulation 12(9) states: To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in paragraphs (5)(d) to (g).

The effect of Regulation 12(1)(b) is that even where the terms of the exception are met, a public authority must consider whether the public interest in maintaining that exception outweighs the public interest in disclosing the information.

The issues we had to determine were:

The powers of the Tribunal in determining the appeal are set out in section 58 Freedom of Information Act 2000, as follows:

“(1)

If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordance with the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)

On such an appeal, the Tribunal may Review any finding of fact on which the notice in question was based.”.

In summary, therefore, the Tribunal’s role was to consider whether the Decision Notice was in accordance with the law. We were entitled to review any findings of fact made by the Commissioner and come to a different decision regarding those facts.

We read an open bundle of 184 pages.

We also read a closed bundle. The Commissioner provided the following gist to describe what was contained within the closed bundle:

The hearing was attended by the Appellant. The Respondent did not appear and was not represented.

The Appellant made submissions with regard to the public interest test and noted that he wished to add nothing to his arguments in relation to emissions.

His principle point of argument was that the Council would appear to be in such a weak negotiating position with Network Rail with regard to the costs of the project that the disclosure of the report could not make things any weaker. Network Rail being a “regulated monopoly” it was able to exercise significant power and influence and force the Council to accept unfair and onerous conditions.

The Appellant referenced a (publicly available) paper presented to the Council’s Scrutiny Committee on 1^st November 2023. He asserted that this showed that the Council had conceded that it was in a very weak bargaining position so far as the final costs negotiations were concerned.

He also argued that, giving effect to the purpose underlying the Aarhus convention and its 2014 implementation guide, it is extremely difficult for National Rail, as a monopoly, to assert a claim of confidentiality where there are no real competitors in the market.

The Appellant argued that there was more than one contractor involved in the project. If the Network Rail aspects of the report were the matters of concern, a redacted report could be provided so that only the direct costs to the Council were included. He argued that, at the very least, high level summaries should be disclosed.

The quantum of the spend on the Thanet Parkway railway project, the Appellant argued, was a significant factor in favour of disclosure. Based on the sums given to the Councils’ scrutiny committee in November 2023, the costs had escalated to over £40 million and it was accepted that more would be incurred before the station opened in July 2024. The Appellant argued that the sums of public money involved, coupled with the fact that it was escalating, militated in favour of transparency and therefore disclosure.

He speculated that if the reason for the escalating costs were to include any mismanagement this would add weight to the arguments in favour of disclosure.

Our initial consideration was whether we needed make a finding on whether or not the report constituted “environmental information” as defined by the Regulations.

We determined that we did not need to make such a finding. Our jurisdiction is limited to matters that are determined by the DN, along with any underlying findings of fact. The DN dealt solely with the issue of the exception engaged under Regulation 12(5)(e). While it must have been an implicit finding of fact that the information constituted “environmental information”, that was not in dispute. As discussed above, the Appellant’s arguments in respect of that appear to have arisen from his conflating the law relating to the definition of “emissions” with that relating to the definition of “environmental information” and a misunderstanding of the Commissioner’s position thereon. No disrespect is intended to the Appellant in this analysis. We note that he is grappling with a complex area of law. We have endeavoured to set out a clear assessment of the relevant law in this decision, such that the Appellant can understand our reasoning.

Given that neither party sought to depart from a finding that the matters complained of did constitute “environmental information” we moved on to consider the exception.

We applied the four part test set out in the Bristol City Council case and identified in the issues at paragraph 35. The Appellant having ventured no arguments in respect of the four questions, they were dealt with on the basis of the Commissioner’s DN.

We accepted, for the reasons set out by the Commissioner, that the information was commercial, that it was subject to confidentiality provided by law, that the confidentiality was necessary to protect a legitimate economic interest and that disclosure would affect that confidentiality.

On the face of it, the exception was available. We moved on to consider the public interest test.

The Appellant indicated in his appeal notice that his appeal related to the application of the public interest test. This was therefore the principal point of discussion.

In its response to the Appellant on 2^nd August 2024 the Council set out the public interest argument in this way:

We gave careful consideration to the Appellant’s arguments regarding the application of the public interest test.

In very broad terms, the purpose of the Aarhus Convention of 1998, to which the UK Government is a signatory, was to establish the rights of ordinary citizens to access environmental information. Philip Coppel KC (Footnote: ³) describes the convention as an agreement “which links environmental rights and human rights, and governmental accountability and environmental protection”. The Convention gave rise to the EIR, which sets out the rights of citizens to access environmental information and hold the government and public bodies to account.

The public interest in transparency and accountability is therefore high, hence the presumption in favour of disclosure of environmental information.

We have, however, determined that the threshold for withholding the information is met in this case. The principal reason for our decision is that, with ongoing negotiations as to costs, the release of the information would be premature and would be very likely to damage the Council’s position with regard to obtaining value for money for the Council and, ultimately, the tax payer.

The Appellant’s arguments are, naturally, based on a position of ignorance. Without sight of the report, he may only speculate as to what it contains. It is the role of this Tribunal, as an independent adjudicator, to scrutinise its contents, ensure that the Appellant’s arguments are given proper consideration and form a view as to the balance of the public interest in disclosing the information.

The report itself related to an ongoing financial negotiation. It was made clear by the Scrutiny Committee report in November 2023 that negotiations were ongoing. It was also made clear by the Council, in its response to the Appellant in August 2024, that the final project costs would be published once they had been agreed.

We do not accept the Appellant’s argument that the Council’s position could not possibly be worse if the report was in the public domain. The panel was of the view that the disclosure of the report could potentially have a detrimental effect on the public purse. We are at pains to make clear that we say that not because of the specific content of the report but because of the general position common to all negotiations that parties must have access to their own information in order to make financial decisions before any confidential information is disclosed. In any event, the report appears to be only one part of the picture and it does not reveal the final costs of the project, as those were, at the time of its creation, still to be determined.

Whatever the final costs and whatever the reasons for any escalations in costs, the public authority will be open to scrutiny upon conclusion of negotiations. It is our view that the information requested by this Appellant will not only slow down negotiations but may significantly hamper them. We agree that the early disclosure of the report could undermine the Council’s negotiating position. There is no public interest in that.

Going back to the principles of the Aarhus convention, the panel agreed that nothing contained within the report in fact provides the public with information that allows the public to participate in environmental discussions.

It appeared to the panel that there was already a significant amount of information in the public domain regarding the project and its budget overrun. Whilst transparency and accountability are important, we did not feel that lack of access to the requested report precluded the public from participating in the debate.

This was a request for environmental information. We have received no submissions which would tend to support an argument that disclosure would enhance accountability or the public discourse as it relates to the environment. The arguments advanced by the Appellant were all predicated around cost and the report itself is a report dealing solely with the costs of the project.

On balance, we found that the public interest in withholding the information outweighed the public interest in its disclosure.

The matter of whether the report was “information on emissions” was dealt with relatively swiftly. The panel were satisfied that it was, as described, a report in respect of costs. It was not about emissions. Indeed, the Appellant’s request was also about costs. Neither was that about emissions.

The Appellant had made no cogent arguments on the definitions of “information on emissions”.

He appeared to use the terms “information on emissions” and “environmental information”, interchangeably.

The Mersey Gateway case was misquoted (we did not read into the case but we note that the paragraphs cited by the Appellant as interpreting the phrase “information on emissions” in fact refer to information falling “squarely into the definition of ‘environmental information’”. They make no mention of “information on emissions”).

Similarly, the text from Coppel (citation above) was misquoted. The Appellant cited paragraph 17-010 as dealing with the definition of “information on emissions” but has misquoted the text. The relevant paragraph appears at page 455 (not 445 as cited) and relates to the definition of “environmental information” and not “information on emissions”. That text is not binding but, in any event, it is irrelevant.

The arguments made by the Commissioner on that point, set out above, were compelling.

Having seen the report and having accepted the arguments set out by the Commissioner, we are satisfied that it dealt only with financial and economic analysis, as set out in the gist, and did not deal with the substance of emissions.

The Appellant’s argument that the exception could not apply, pursuant to Regulation 12(9), was therefore not well founded.

With reference to the O’Hanlon case, set out above, the Tribunal determined that our decision on the engagement of Regulation 12(5)(e) EIR and the public interest test would be the same both at 13^th September 2024, when the Council’s decision was made, and on 30^th April 2024, when the Council’s response was required.

For those reasons, the appeal is dismissed.