About this detailed guidance
This guidance discusses exceptions and the public interest test (PIT) under the Environmental Information Regulations (EIR) and is written for use by public authorities. Read it if you require guidance to help you in considering the application of exceptions and carrying out the public interest test in practice.
- How do exceptions and PIT work under EIR?
- What does the EIR say?
- What do the exceptions in regulation 12(4) and (5) say?
- How do exceptions and PIT work under EIR?
- How does the adverse effect test work?
- How does the public interest test work under EIR?
- What arguments can we take into account in favour of maintaining the exception?
- What arguments can we take into account in favour of disclosure?
- What factors are irrelevant?
- How do you attach weight to the public interest arguments?
- Can we aggregate the PIT factors under EIR?
- When can we consider adverse effect and the public interest test?
Regulation 12(1) states that 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.
(2) A public authority shall apply a presumption in favour of disclosure.
Under EIR regulation 5(1), you have to make your environmental information available on request. There are certain exceptions to this duty, listed in regulations 12(4) and 12(5). In addition, the duty does not extend to an applicant’s own personal data (regulation 5(3)). Organisations can only release personal data about other people subject to the conditions in regulation 13.
This guidance relates to how the exceptions in regulations 12(4) and 12(5) work in general terms. We produced separate guidance on each exception.
The various exceptions in regulation 12(4) relate to the request or to the type of information requested. For example, regulation:
- 12(4)(b) refers to requests that are manifestly unreasonable; and
- 12(4)(e) refers to material that is still in the course of completion.
Under regulation 12(4), if the type of request or information is specified in the exception, then the exception is engaged. You do not need to establish that disclosing the information would have an adverse effect in order to engage the exceptions in 12(4). But, if there would be an adverse effect, this would be relevant to the public interest test.
The exceptions in 12(5) are engaged if there would be an adverse effect on the exception’s interest. For example:
- regulation 12(5)(b) refers to an adverse effect on the course of justice; and
- regulation 12(5)(c) refers to an adverse effect on intellectual property rights.
In Export Credits Guarantee Department v Friends of the Earth  EWHC 638 (Admin) (17 March 2008), Justice Mitting said:
“As is evident from the words of regulation 12, potentially exempt information is dealt with in two categories or classes… Where an item of information falls within one of the classes identified in regulation 12(4) it is not necessary, for the provisions of 12(1) and (2) to be engaged, that prejudice to any particular interest should be disclosed. When regulation 12(5) is in issue, it is.”
The exceptions in 12(4) and 12(5) are engaged in different ways. However, all the exceptions in these two regulations are subject to the public interest test. Once you engage the exception, you then need to consider the balance of the public interest in either maintaining the exception or disclosing the information.
Under regulation 12(2), you should presume disclosure when engaging the exception and carrying out the public interest test. When engaging the exception, you should have clear evidence that the request or information falls into the class listed in regulation 12(4), or that disclosure would have the adverse effect listed in 12(5).
Robin Philip Burgess v the Information Commissioner and Stafford Borough Council EA/2006/0091 (7 June 2007) concerned a request for legal advice that the council received about a planning appeal. The council withheld the information under regulation 12(5)(b).
The Information Tribunal said:
“We have had in mind Regulation 12(2) and the presumption in favour of disclosure when considering the exception and have taken it to require, in this part of the application of Regulation 12, that in any case where there is doubt of the applicability of the exception that doubt must be resolved in favour of the disclosure i.e. the exception does not apply.”
In that case the Tribunal found that there was no doubt and the exception was engaged.
EIR contains exceptions from the duty to make information available, but there is a presumption in favour of disclosure (regulation 12(2) EIR).
The exceptions in regulation 12(4) relate to the nature of the request or the type of information. In regulation 12(5), they relate to an adverse effect on a particular interest. To engage an exception in regulation 12(5), you must show that disclosure “would” have an adverse effect; ie, that the adverse effect is more probable than not. All the exceptions in regulations 12(4) and 12(5) are subject to a public interest test.
The ‘public interest’ means what is in the public interest, not what is of interest to the public. Public interest arguments for an exception should reflect the exception itself. When deciding whether to apply an exception, you must assess all the circumstances of the case and not simply make blanket rulings.
There is always a general public interest in disclosure, deriving from the purpose of EIR. You may also find a public interest in transparency about the issue the information relates to. You should also consider arguments in favour of disclosure of specific information. A suspicion of wrongdoing may provoke a public interest in disclosure, but you should identify a plausible basis for the suspicion. There is always some public interest in disclosing information to present a full picture.
When deciding whether to disclose information, irrelevant factors include:
- the requester’s identity;
- their private interests; and
- the argument that some may misunderstand the information.
The fact that other methods of scrutiny are available does not, in itself, weaken the public interest in disclosure. However, people using other methods apart from EIR may weaken the public interest in disclosure.
The factors determining the weight of the arguments for and against disclosure can include:
- the likelihood and severity of any adverse effect;
- the age of the information;
- how far disclosing the information would serve the public interest; and
- what information is already in the public domain.
You must weigh the public interest arguments for maintaining the exception against those for disclosure. You must disclose the information unless the public interest in maintaining the exception outweighs that in disclosure. If more than one exception applies, you need to consider the public interest under each exception. You may also consider the aggregate public interest.
You should consider any adverse effects of disclosure and the balance of public interest at the time for responding to the request. The only exception that includes a ‘neither confirm nor deny’ provision is regulation 12(5)(a), and it is subject to the public interest test. In addition, where a request is too general for a response, you cannot confirm or deny whether you hold the information.
Regulation 12(5) refers to an adverse effect on various interests. The Commissioner’s view is that the phrase ‘adversely affect’ implies harm to something. In other words, disclosing the information would harm the interest the exception specifies. The Implementation Guide to the Aarhus Convention says:
“Adversely affect means that the disclosure would have a negative impact on the relevant interest.” (page 58)
In this respect, ‘adverse effect’ is equivalent to ‘prejudice’ in FOIA. There are similarities between the exceptions in regulation 12(5) and the ‘prejudice-based’ exemptions in FOIA. However, the threshold for what constitutes adverse effect in EIR is different to that for prejudice in FOIA.
The Information Tribunal, in Benjamin Archer v the Information Commissioner and Salisbury District Council EA/2006/0037 (9 May 2007), identified some key elements of the adverse effect test:
- “First, it is not enough that disclosure should simply affect [the interests referred to in the exception]; the effect must be “adverse”.
- Second, refusal to disclose is only permitted to the extent of that adverse effect.
- Third, it is necessary to show that disclosure “would” have an adverse effect - not that it could or might have such effect.
- Fourth, even if there would be an adverse effect, the information must still be disclosed unless “in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information”.
- All these issues must be assessed having regard to the overriding presumption in favour of disclosure.
- The result, in short, is that the threshold to justify non-disclosure is a high one.
To engage the exception, you must show that some adverse effect on the interests specified in the exception would happen. It is not enough to show that the information relates to those interests. As long as you can show that disclosure would produce an adverse effect, as specified in the exception, you can engage the exception. The extent or severity of that adverse effect is not relevant here, though it is relevant to the public interest test.
Decision notice FER0369650 concerned a request to Thanet District Council for a copy of the condition survey it commissioned in 1997 on the air raid and disused rail tunnels under Ramsgate. The council withheld the information with reference to regulation 12(5)(a). This is concerned with an adverse effect on interests including public safety. The tunnels were in a dangerous condition and the council argued that disclosing the survey would encourage the public to enter the tunnels and risk their safety. So, the withheld information related to public safety. However, the Commissioner found that much of the information in the report was general. The Commissioner also did not accept that disclosing specific information about the tunnels’ condition would encourage people to enter them. A lot of information about the tunnels was already publicly available on the internet:
“…there is already a lot of information in the public domain regarding the tunnels and more importantly, the council has not persuaded the Commissioner that disclosure of additional information, in the form of the survey report will assist and encourage members of the public, not already so minded, to enter the tunnels.” (paragraph 35).
Even though the information was about public safety, said the council could not say that its disclosure would have an adverse effect on public safety. The Commissioner found that the exception was not engaged.
If relying on this exception, you must also show how the adverse effect would happen. This is equivalent to the ‘causal link’ in establishing prejudice under FOIA.
The Information Tribunal case of North Western and North Wales Sea Fisheries Committee v the Information Commissioner EA/2007/0133 (8 July 2008) concerned a request to the Committee for information about an oyster and mussel fishery in the Menai Strait. The exception was 12(5)(e); disclosure would adversely affect the confidentiality of commercial or industrial information. The Tribunal commented:
“Mr. Wilson [a witness] did not address how disclosure of each individual element of the request would adversely affect confidentiality. This has not been addressed by the Committee in its submissions beyond the assertion that if the information was disclosed there would be considerable detriment to the interests of the Leaseholders and that it would be of advantage to competitors.”
To the extent of the adverse effect
You can refuse to disclose information only to the extent of the adverse effect. This means that the exception is not engaged when disclosing parts of the requested information that would not have the relevant adverse effect.
Benjamin Archer v the Information Commissioner and Salisbury District Council EA/2006/0037 (9 May 2007) concerned a request for a report to a council committee on a planning enforcement matter. The council withheld the report under regulation 12(5)(b). They claimed that disclosure would adversely affect the ability of the council “to conduct an inquiry of a criminal … nature”.
The Tribunal found that the first part of the report contained only the background to the case. Disclosing this would not have the adverse effect specified in the exception. However, the second part of the report discussed:
- possible enforcement action and prosecutions;
- the strengths and weaknesses of the council’s position; and
- recommendations for action.
The Tribunal found that the exception was engaged in respect of this part.
Would adversely affect
For you to apply an EIR exception, you must show that disclosure is more likely than not to have the adverse effect (ie a more than 50% chance). It is not enough to show that disclosure could or might have an adverse effect.
The Information Tribunal’s decision in Christopher Martin Hogan and Oxford City Council v the Information Commissioner EA/2005/0026 and 0030 (17 October 2006) (“Hogan”) supports our interpretation of “would adversely affect”. The Tribunal in Hogan considered a prejudice-based exemption in FOIA. ‘Prejudice’ in FOIA is seen as equivalent to ‘adverse effect’ in EIR. The Hogan Tribunal said that the term ‘would prejudice’ means “the occurrence of prejudice to the specified interest is more probable than not”.
The prejudice-based exemptions in FOIA use the phrase “would or would be likely” to prejudice. The Hogan Tribunal went on to say that “would be likely” meant “a real and significant risk of prejudice, even if it cannot be said that the occurrence of prejudice is more probable than not”. Unlike the FOIA exemptions, however, the EIR regulation 12(5) exceptions do not contain the phrase ‘would be likely’. You can only apply them where it is more probable than not that the adverse effect would happen.
It is not possible to prove beyond doubt that the adverse effect would happen. However, you must still show that:
- the causal link between disclosure and effect is so convincing that the adverse effect is clearly more likely to happen than not. This applies even if the adverse effect would happen only once or affect only one person or situation; or
- disclosure is more likely to have an adverse effect than not, given the potential for the adverse effect to occur, and how frequently these circumstances arise (ie the number of people, cases or situations in which the prejudice would occur).
The fact that EIR uses only “would” and not “would be likely” means that the test for engaging these exceptions is more stringent than FOIA prejudice-based exemptions. A public authority cannot engage an exception if they cannot show that the adverse effect is more likely to happen than not (ie if there is a less than 50% chance).
The effect of regulation 12(1)(b) is that all the exceptions in regulations 12(4) and 12(5) are subject to a public interest test. This means that you can refuse to disclose information under these exceptions only if “in all the circumstances of the case the public interest in maintaining the exception outweighs the public interest in disclosing the information”. In assessing this, under regulation 12(2), you must also apply a presumption in favour of disclosure. The Commissioner recognises that where an authority refuses a request under regulation 12(4)(a) because they do not hold the information, it is not possible to consider the public interest in whether they should disclose the information.
To carry out the public interest test, you need to understand what ‘the public interest’ means in an EIR context.
In the public interest
The public interest test can cover many values and principles about what is the public good, or what is in society’s best interests. In the context of EIR, there is a public interest in a sustainable environment. There is also a public interest in transparency and accountability, to promote public understanding and safeguard democratic processes. Other examples of public interests include:
- good decision-making by public bodies;
- upholding standards of integrity;
- ensuring justice and fair treatment for all;
- securing the best use of public and environmental resources; and
- ensuring fair commercial competition in a mixed economy.
This is not a complete list; the public interest test can take many forms.
However, these examples of the public interest do not automatically mean that you should disclose or withhold information in any particular case. For example, an informed and involved public helps to promote good decision-making by public bodies. However, public bodies may also need space and time to fully consider their policy options. They may need to reach an impartial and appropriate decision, away from public interference. Revealing information about wrongdoing could help the course of justice, but these investigations may need confidentiality to be effective. In each case, the public interest test involves identifying the appropriate public interests and assessing whether they are best served by disclosure or by maintaining an exception.
Of interest to the public
The public interest is not necessarily the same as what interests the public. A topic being in the media does not automatically prove a public interest in disclosing the requested information. Media coverage of an issue may well indicate that there is a public interest at stake, but it is not proof of the fact.
Public interest arguments
In carrying out the public interest test, you should consider arguments in favour of either disclosing the information or maintaining the exception. You should try to do this objectively, recognising that you can make arguments on both sides. You may find it helpful to draw up a list showing the arguments you are considering on both sides. This helps you to assess the relative weight of the arguments.
The public interest must be relevant to the specific exception
In considering the public interest with any particular exception, you should only take into account the relevant public interest arguments. Any public interest arguments that support other exceptions are irrelevant.
In Office of Communications v the Information Commissioner and T-Mobile (UK) Ltd EA/2006/0078 4 September 2007 (“Ofcom”) the Information Tribunal said:
“It seems to us that for a factor to carry weight in favour of the maintenance of an exception it must be one that arises naturally from the nature of the exception. It is a factor in favour of maintaining that exception, not any matter that may generally be said to justify withholding information from release to the public, regardless of content. If that were not the case then we believe that the application of the exceptions would become unworkable.”
The Ofcom Tribunal’s comments above relate to the public interest for an individual exception. Where the test engages more than one exception, please refer to the section on ‘Can the PIT factors be aggregated under EIR?’.
Under EIR regulation 12(1)(b), you must consider whether, “in all the circumstances of the case”, the public interest in maintaining the exception outweighs disclosure. Having a general approach to releasing certain types of information may help you from an administrative point of view. However, this should not prevent you from considering the balance of public interest in the circumstances of a particular request.
In Christopher Martin Hogan and Oxford City Council v the Information Commissioner (EA/2005/0026 and 0030, 17 October 2006), the Information Tribunal said:
“The public authority may well have a general policy that the public interest is likely to be in favour of maintaining the exemption in respect of a specific type of information. However such a policy must not be inflexibly applied and the authority must always be willing to consider whether the circumstances of the case justify a departure from the policy.”
Although the case above is in the context of FOIA, it is equally applicable under EIR.
You should balance the competing public interest arguments after a contents-based assessment of the withheld information. This follows the approach endorsed by the Upper Tribunal in Department of Health v IC & Lewis  UKUT 159 (AAC).
Effect of regulation 5(6)
Regulation 5(6) states that “any enactment or rule of law that would prevent the disclosure of information in accordance with these Regulations shall not apply”. This contrasts with section 44 FOIA, which says that information is absolutely exempt if other legislation prohibits disclosing it. The existence of another legal bar cannot prevent disclosure under EIR. However, if there is such a bar, this may indicate that there is a public interest argument for maintaining the exception.
General public interest in transparency
There is a general public interest in the disclosure of environmental information. It supports the right of everyone to live in an adequate environment and ultimately contributes to a better environment. This is a general public interest argument for disclosure and it does not need to relate to a specific exception. On the other hand, public interest arguments in favour of the exception must relate specifically to what that exception is protecting. The Aarhus Convention explains that:
“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information … in accordance with the provisions of this Convention.”
Public interest in the issue
As well as the general public interest in transparency there may also be a legitimate public interest in the subject of the information. If, for example, a decision on environmental policy has a widespread or significant public impact, there is a public interest in furthering debate on the issue. So, this can represent an additional public interest argument for disclosure.
If you are taking a major policy decision, you could also use a contrary argument that you should not disclose information. This is because of the need for a safe space in which to formulate and develop that policy.
Public interest in the information
In addition to the general public interest in transparency, accountability or the issue itself, there may be a specific public interest in disclosing the information in question. This, of course, depends on the circumstances of the case.
In the case of HS2 v IC & Malcolm Griffiths EA/2020/0007, the withheld information consisted of “PFM” summaries. These are the products of data inputs pushed through an analytical computer model, which are the building blocks for the development of a business case. The organisation publishes business cases intermittently, along with a document called a “STR”, which explains to the public the reasons for the changes from the previous business case. In this case, the organisation called the “STR” versions “Rev01-04”. The Judge considered these to be of most assistance to the public. The Judge found the most recent “Rev04” to have the most public interest.
The court decided that the public interest in “Rev04” was greatest as it was the most useful document to the public. This was because it was a product of the PFM summaries and also provided the requested information. The public interest in the historic “REV01-03” was less, as these were out of date and superseded, thus not as useful to the public. The public interest in the “PFM” summaries was also less, as these were used to produce “Rev04”. Finally, the Judge indicated that where the First-Tier Tribunal (FTT) has ordered disclosure of some information, this reduces the public interest in disclosure of further information held (paragraph 89):
“I have also considered the presumption in favour of disclosure having made these decisions about the public interest in non-disclosure for some of the information within scope. In my view, in circumstances where Mr. Griffiths will be provided with the main information he seeks in relation to his request, and the subsequent low public interest in disclosure of further information, the presumption does not alter the decisions I have made.”
A specific public interest is not the same as a requester’s private interest. The guidance deals with the subject of private interests below.
Suspicion of wrongdoing
Another potential public interest in transparency is where there is a suspicion of wrongdoing by the public authority. A requester may, for instance, allege that a public authority committed some form of wrongdoing and that the information requested would shed light on this. To consider this as a factor in the public interest test:
- disclosure must serve the wider public interest (see private interests below) rather than just the requester’s private interests; and
- the suspicion of wrongdoing must amount to more than a mere allegation. There must be a plausible basis for the suspicion, even it is not proven.
A number of sources may suggest whether this plausible basis exists:
- The facts of the case may suggest that the basis for an authority’s actions is unclear or open to question.
- The outcome of any independent investigation, for example by an Ombudsman or auditors, may indicate if there is any substance in an allegation of wrongdoing.
The content of the information is important in making this assessment. It may refute the suspicion, in which case there may be some public interest in disclosing the information to clear up misconceptions. Or, it may indicate that the suspicion is justified, in which case there is an even stronger public interest in disclosure.
Peter Hoare v Information Commissioner and Basingstoke and Deane Borough Council (EA/2007/0115, 11 August 2008) concerned a request to the council for information about a planning matter. The information included a memo containing legal advice, which was withheld under regulation 12(5)(b). The Information Tribunal examined the memo and found that
“There would need to be a strong public interest in ordering its disclosure … [T]he contents do not reveal any kind of “smoking gun” that might have caused the Tribunal to arrive at a different conclusion in relation to the public interest balancing test.”
Evidence of public concern could also be a factor for disclosure. If there is evidence of public concern, but those concerns do not have an objective basis, there can still be a public interest argument for disclosure. This applies if the information would show that the concerns are unjustified and would help restore confidence in the public authority.
The ICO cannot assess whether maladministration or other wrongdoing took place. In dealing with a complaint, we would consider the types of evidence listed above to assess whether the suspicion of wrongdoing creates a public interest in disclosure. We would not decide whether the authority was guilty of wrongdoing.
Presenting a ‘full picture’
Even if wrongdoing is not an issue, there is a public interest in fully understanding the reasons for a public authority’s decision. This may remove any suspicion of manipulating the facts. For example, there may be a public interest argument for disclosing advice given to decision-makers. The advice and the reasons for the decision being complex does not lessen the public interest in disclosing it. In fact, it may strengthen it. Similarly, the information does not have to give a consistent or coherent picture for disclosure to help public understanding. There is always an argument for presenting the full picture and allowing people to reach their own view.
The case of Lord Baker v the Information Commissioner and the Department for Communities and Local Government (DCLG) (EA/2006/0043, 1 June 2007) concerned a request for the advice given to the Deputy Prime Minister in a decision on whether to grant planning permission for a large building in London. The DCLG withheld the information under regulation 12(4)(e) as it involved the disclosure of internal communications. The DCLG argued that the public interest in disclosing the advice was reduced because the decision letter, which was in the public domain, fully reflected the issues considered. The Information Tribunal disagreed, and asserted the importance of releasing information to provide a full picture:
“It seems to us, however, that one reason for having a freedom of information regime is to protect Ministers and their advisers from suspicion or innuendo to the effect that the public is not given a complete and accurate explanation of decisions; that the outcome is in some way “spun” (to adopt the term whose very invention illustrates this tendency towards cynicism and mistrust). Disclosure of internal communications is not therefore predicated by a need to bring to light any wrongdoing of this kind. Rather, by making the whole picture available, it should enable the public to satisfy itself that it need have no concerns on the point.”
If information that is already available (rather than the requested information) is misleading, misrepresents the true position or does not reveal the full picture, this may increase the public interest in disclosure. For instance, an authority may disclose part of their legal advice. This may lead to misrepresentation or a misleading picture being presented to the public. Here, there may be a public interest in disclosing the full advice.
Identity of the requester
The requester’s identity or their motives in seeking the information are not relevant to the public interest test. A disclosure of environmental information is, in effect, a disclosure to the world. When carrying out the public interest test, public authorities must consider the effect of making the information public, not the effect of giving it to a particular requester.
Regulation 12(4)(b) is engaged where a request for information is manifestly unreasonable. This is a similar provision to section 14(1) in FOIA, which provides an exemption for vexatious requests. In assessing whether a request is vexatious or manifestly unreasonable, you may need to take account of the request’s context and history, including the requester’s identity. However, unlike section 14 of FOIA, regulation 12(4)(b) requires the authority to carry out a public interest test. This is about the public interest in disclosing information to the world or maintaining the exception. The requester’s identity is irrelevant in the public interest test.
EIR regulation 12(1)(b) refers to the public interest. Disclosures under EIR are, in effect, to the world at large, not just to the requester. The requester’s private interests are not in themselves the same as the public interest. What may serve those private interests does not necessarily serve a wider public interest. Private interests are irrelevant to the public interest test.
A requester may have a grievance they are pursuing and may think the information they want could help them. However, there would only be a public interest argument if you can show that disclosing the requested information serves a wider public interest.
The First-tier Tribunal case of Roger Woodford v the Information Commissioner (EA/2009/0098, 21 April 2010) concerned a request for legal advice St Albans City and District Council received about a right of way over a piece of land. The requester was involved in a long-standing dispute with the council over the right of way. The council withheld the information under regulation 12(5)(b). The Tribunal did not accept that the requester’s private interests in pursuing his dispute were relevant to the public interest test. They said that:
“…this case is not concerned in any way with the Appellant’s own private interests… If it is claimed, as it seems to be, that the disputed information had some form of “vital evidentiary role” in the Appellant’s dispute, the same is simply not relevant in addressing the equation to be resolved with regard to the competing public interest.”
Information may be misunderstood
Information requested under EIR may be technical or complex. Public authorities often raise the argument that information may be misleading or misunderstood, regardless of the exception claimed. In the Commissioner’s view, it is not relevant to the majority of the EIR exceptions. The obvious solution is for you explain the information, rather than withhold it.
Elmbridge Borough Council and Gladedale Group Ltd v the Information Commissioner (EA/2010/0106, 4 January 2011) concerned a request for information submitted in support of a planning application. In considering arguments put forward by Gladedale Group Ltd, the First-tier Tribunal said that:
“We are of the view that possible misinterpretation of a document is not a ground for withholding disclosure.”
Public authorities argue that the information would be misleading, eg if it consists of notes reflecting only part of a discussion or if it is inaccurate or out of date. However, public interest arguments must be inherent in the exception claimed, rather than just general arguments against disclosure. In any case, you should be able to put the information into context when releasing it. It may also be in the public interest to show the information that you based your decision on, even if that information was incorrect.
Regulation 12(4)(d) (material in the course of completion, unfinished documents or incomplete data)is the main relevant exception where the Commissioner accepts arguments about information being misunderstood..
In any other type of case, you can only use the argument if it is not possible to provide this explanation, or if the explanation would not limit any damage caused. The Commissioner accepts that, in some isolated cases, it may not be possible to provide the necessary explanation or context. As a result, you may not be able to effectively protect the public interest inherent in the exemption.
Regulation 5(4) says that, in response to EIR requests, information “is compiled by or on behalf of the public authority it shall be up to date, accurate and comparable, so far as the public authority reasonably believes”. Our view is that this regulation’s scope is narrower than it appears. We believe it only applies where:
- the request is for current factual data;
- the public authority is collecting this information on an ongoing basis for its own business purposes; and
- the authority is or should be aware that the information is not accurate, up to date or comparable.
The provision relates to factual data. You do not have to reconsider the quality or correctness of your opinions or decisions.
Other means of scrutiny
You cannot take issues of public concern into account to weaken the public interest in disclosure. You also cannot take it into account if you are aware that the issue is under scrutiny through other means or regulation. You cannot argue that there is no need for the public to scrutinise the requested information through EIR if another body could consider it as part of their scrutiny or regulatory function.
The fact that other means of scrutiny are available does not in itself weaken the public interest in disclosure. We do not consider it a relevant factor in the public interest test. However, using or pursuing these other means may go some way to satisfying the public interest that disclosure would otherwise serve. For example, a publicly available report providing the conclusions or outcome of the other means of scrutiny or regulation may somewhat lessen the public interest in disclosure. Furthermore, if the other investigation is ongoing, you may better serve the public interest by allowing it to continue without interference, rather than disclosing information prematurely.
You need to consider:
- how far the other means of scrutiny go to meet the public interest in transparency in any particular case; and
- what information is available to the public by these other means.
There is always some public interest in disclosing the ‘full picture’, for general transparency and accountability purposes, so you cannot fully discount the public interest in disclosure.
Once you identify the relevant arguments for maintaining the exception and for disclosure, you must then assess the relative weight of these arguments. This is to decide where the balance of public interest lies. This is not an exact process, but you should try to approach it as objectively as possible. If the Commissioner is considering the case, we will consider these arguments, or other public interest arguments that you did not include, and may reach a different conclusion.
Other factors can add weight to the arguments on either side. These can help decide where the balance of public interest lies. These factors include the following:
Likelihood of adverse effect
To engage an exception in regulation 12(5), you must show that it is more probable than not that the adverse effect would occur. This means a strong causal link between the disclosure and the adverse effect, or that the adverse effect could happen frequently.
So ‘adverse effect more probable than not’ is the minimum requirement for engaging a regulation 12(5) exception. It does not mean that the public interest in maintaining the exception necessarily outweighs disclosure. It is the starting point for considering the public interest test for these exceptions. A conclusion that the adverse effect is ‘more probable than not’ cannot decide the issue alone, because of the presumption in favour of disclosure in regulation 12(2).
The chance of the adverse effect happening must be at least 50%. However, the greater the likelihood above this threshold, the greater the public interest in maintaining the exception. The likelihood is affected by:
- how extensive the adverse effect is – how many people or situations it affects; and
- how frequently the opportunity for the adverse effect would arise.
The severity of the adverse effect also affects the weighting. This is about the impact of the adverse effect when it happens. It does not cover how frequently the event occurs. The adverse effect may still happen, even without a severe impact. However, if the adverse effect has a particularly severe impact on people, the authority or other public interests, then this carries considerable weight in the public interest test. This would be relevant if, for example, there is any risk of physical or mental harm.
In our view, severity and likelihood together indicate the impact of the adverse effect. This, in turn, affects the weight attached to the arguments for the exception. This is shown in the following diagram:
This indicates that both the severity and the likelihood of the adverse effect (which must be more likely than not) affects the weight of the arguments for maintaining a regulation 12(5) exception.
Age of the information
Generally speaking, the public interest in maintaining an exception diminishes over time. This is as the issue the information is about becomes less topical or sensitive. The likelihood or severity of the adverse effect also diminishes over time. However, this is not necessarily true in every case.
For example, if an investigation is closed for a long time, the weight of public interest in disclosure may increase. If someone reopens the investigation, it may restore the weight of the public interest argument for the exception. The weight of the arguments on either side can depend on the age of the information and the timing of the request.
The specific information and the public interest in disclosure
In assessing the weight of arguments for disclosure, you need to consider how far disclosing the requested information would further the identified public interests. The information may be relevant to a subject of public interest. However, it may not greatly add to public understanding. In such cases, the public interest in maintaining the exception may outweigh disclosure.
The case of Ryan v Information Commissioner  UKUT 54 (AAC) (the Ryan case) involved a request to Kent County Council. The request was for information about the Council’s negotiations with Tesco, regarding the sale of Council land to Tesco in 2004. The Upper Tribunal (UT) observed that it is important to look at the disputed information and consider whether its disclosure would further the public interest. In this case, the UT suggested that if the withheld information regarding tactics is well known to anyone advising on development issues, disclosure would not do much to further the public interest in disclosure. If the disputed information is not particularly informative, then it is important to explain why disclosing would outweigh maintaining the exception.
Information already in the public domain
You should consider whether similar information is already available in the public domain when you issue your response. You should also think about what effect this has on the public interest test. If similar information is already available and the requested information would not significantly add to it, the public interest arguments about furthering debate and increasing accountability may carry little weight. If the requested information contains any new material that would help inform public debate, then the weight of the public interest argument is not reduced. There is always some weight in the general argument for transparency and having the ‘full picture’.
The factors discussed above can help you in assigning relative weight to the public interest arguments on each side. However, they are not a complete list. Other factors may also be relevant, depending on the circumstances of the case.
The balancing exercise
Having listed the public interest arguments and attached some relative weight to them, you must then carry out a balancing exercise. This decides whether the public interest in maintaining the exception outweighs the public interest in disclosure. If it does not, you must release the information. In the Ryan case mentioned above, the UT found that the balance of the public interest test is a comparative one. For example, the weaker the case for one side, the less is needed on the other side to outweigh it. The UT also confirmed that it is necessary to show how you factor the presumption in favour of disclosure into the consideration.
The following case is an example of how the Information Tribunal approached the balancing exercise. The arguments on each side and the weight attached to them reflect the circumstances of this case.
In Bristol City Council v Information Commissioner and Portland and Brunswick Squares Association (EA/2010/0012, 24 May 2010), a residents’ association concerned about the proposed demolition of a listed building asked Bristol City Council for a report on the viability of the building and an estimate of feasibility costs. A developer gave this to the council. The council withheld these under regulation 12(5)(e) because of commercial confidentiality.
You can see the balance of public interest, as considered by the First-tier Tribunal (FTT), below:
Public interest in maintaining the exception
- The inbuilt public interest in maintaining commercial confidentiality. The FTT reduced the weight of this argument because they thought the information was not of great sensitivity to the developer and because it was part of an otherwise open planning process.
- Disclosing the viability report and cost estimates would damage the developer’s commercial interests. The likelihood of this happening and the severity of the damage were limited.
- There was a risk that developers would not provide accurate viability reports in future. The argument had limited weight because:
- EIR means that there cannot be an absolute assurance of confidentiality;
- the evidence put forward for this related to a different scenario (section 106 agreements); and
- developers must still submit the reports, but they do not have to include sensitive commercial information.
Public interest in disclosing the information
- The information was directly relevant to environmental decision-making about a listed building. In taking that decision the council relied on information that was not publicly available.
- The features of the planning regime, including:
- the need for local community involvement;
- the fact that responsibility for stewardship of the historic environment is shared with voluntary bodies;
- the requirement for clear and convincing evidence of the need to demolish a listed building; and
- the need to take account of local representations.
- The First-tier Tribunal said at paragraph 17: “All that in our view indicated a very weighty public interest in disclosure in this case”.
- The fact that the council owned the Coroner’s Court, which occupied part of the site. The council’s interest in this called for ‘a particular scrupulousness’, increasing the need for full disclosure. The First-tier Tribunal said at paragraph 17 that this added substantially to the weight of the public interest in disclosure.
- The mismatch in resources between the developers and the residents’ groups.
The First-tier Tribunal’s conclusion at paragraph 22 was that the public interest in disclosure substantially outweighed the public interest in maintaining the exception.
The Tribunal emphasised at paragraph 23 that they reached this decision based on the facts of the case. They did not intend the decision to set a precedent. Nevertheless, their approach is a useful example of how to carry out the public interest test.
How do we apply the presumption in favour of disclosure?
Regulation 12(2) specifically states that you shall apply a presumption in favour of disclosure when considering the exceptions.
The Commissioner takes the view that the presumption in favour of disclosure should inform all your decisions under the EIR, including engaging the exception in the first place.
In Vesco v Information Commissioner and the Government Legal Department ( UKUT 247 (AAC), 1 August 2019), the Upper Tribunal the approach that the presumption in favour of disclosure is a separate stage. That is, it is to be considered if, after engaging the exception, the application of the public interest test did not lead to disclosure.
“… If application of the first two stages has not resulted in disclosure, a public authority should go on to consider presumption in favour of disclosure under Regulation 12(2) of the EIRs. … the presumption serves two purposes: (1) to provide the default position in the event that the interests are equally balanced and (2) to inform any decision that may be taken under the regulations.” (paragraph 19)
In practice, this approach to the presumption in favour of disclosure is likely to be most relevant in those cases where competing public interests are finely balanced, thereby making the outcome of the public interest test not clear cut. In these situations, the presumption in favour of disclosure will be the deciding factor that tips the balance in favour of disclosing the information.
By contrast, the presumption in favour of disclosure is unlikely to make any substantial difference when – having decided the exception is engaged – in carrying out the public interest test, you are satisfied that the information:
- should be withheld because the public interest in maintaining the exception outweighs the public interest in disclosing the information; or
- should be disclosed because the public interest in disclosure is equal to, or greater than, withholding it.
The presumption in favour of disclosure is an important principle. When relying on an exception, you should make it clear to the applicant that you have taken it into account when making your decision.
When investigating a complaint, the Commissioner will look at how you applied the presumption in favour of disclosure, including asking you about how you considered it if the outcome of the public interest test was not clear cut.
If you are engaging more than one exception with the same piece of information, and the public interest test for each in favour of disclosure, you may then weigh the public interest in disclosure against the aggregated weight of maintaining all the exceptions.
This is based on a ruling from the European Court of Justice. It comes from a case (C71/10) linked to the Information Tribunal’s original decision in Office of Communications (Ofcom) v the Information Commissioner and T-Mobile (UK) Ltd (EA/2006/0078, 4 September 2007). This ruling remains binding, despite the UK leaving the EU.
The Information Tribunal case concerned a request for data on the locations of mobile phone base stations. The information was withheld under the exceptions in regulations 12(5)(a) and (c). The Tribunal found that the public interest in maintaining the exceptions did not outweigh disclosure for either exception.
The European Court of Justice referred to the second sentence of Article 4(2) of Directive 2003/4/EC, which EIR implements:
“In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal.”
They ruled that:
“Article 4(2) of Directive 2003/4 must be interpreted as meaning that, where a public authority holds environmental information or such information is held on its behalf, it may, when weighing the public interests served by disclosure against the interests served by refusal to disclose, in order to assess a request for that information to be made available to a natural or legal person, take into account cumulatively a number of the grounds for refusal set out in that provision.” (paragraph 32)
In practice, this is only likely to apply where the balance of the public interest on each exception is in favour of disclosure. If the balance of the public interest for any of the exceptions is in favour of maintaining it, then the information is exempt from disclosure.
The European Court of Justice made this ruling about the Environmental Information Regulations. The Commissioner’s view is that it does not apply to FOIA.
The assessment of whether disclosure would have an adverse effect varies, depending on events that are happening while you are handling the request. Your circumstances may change between receiving and answering the request. The balance of the public interest can also change during this time.
When considering either adverse effects or public interest, you have to take account of the circumstances up to the point when you issue your response to the request in accordance with statutory timeframes for compliance. That is, at the 20 working days limit. If the request is particularly complex or a high volume of information has been requested, regulation 7 allows you to extend the time you need to respond by further 20 working days.
This means that – if you are late in issuing your response – you still need to conduct the public interest test by reference to the time at which you should have responded.
In Montague v Information Commissioner (‘IC’) and the Department of International Trade (‘DiT’)  UKUT 104 (AAC), a three-judge panel of the Upper Tribunal decided that the public interest balance must be assessed on the basis of how matters stood at the time of an authority’s decision on a request. This is the time when an authority is required to respond in accordance with the requirements and statutory timeframes in Part I of FOIA. The Upper Tribunal also decided that a public authority’s decision on a request does not include any later decisions made on review after issuing the original decision.
This decision means that – if an applicant requested an internal review under regulation 11 – you cannot include the time of the internal review in the time for considering the balance of the public interest. Rather, as part of your internal review, you need to look back to establish if – at the time of issuing your response – you dealt appropriately with the request, including the balancing of the public interest.
The Montague decision was made in the context of FOIA. However, it is relevant also to requests for information made under the EIR.
Prior to the Upper Tribunal’s decision in Montague, a relevant authority in the context of the EIR about the time at which to consider the balance of the public interest was the First-tier Tribunal’s decision in Department for the Environment, Food and Rural Affairs v Information Commissioner & Dale; Natural England v IC & Dale (EA/2014/0311, EA/2014/0094, EA/2014/0160, EA/2014/0234).
In this decision, the FTT had said that – where there is an internal review – this should have been included in the time for conducting the public interest test because the date of the internal review is “when the final decision by the public authority to refuse to disclose the information is taken” [para. 64 of FTT’s decision].
The FTT reached this finding by building on the Supreme Court’s decision in R (Evans) v HM Attorney General  UKSC 21,  1 AC 1787.
However, the Upper Tribunal’s decision in Montague has now clarified that an interpretation that includes the time of the internal review in an authority’s decision on a request for information is a mis-reading of the Supreme Court’s decision in Evans [para. 63 of UT’s decision].
Based on the outcome of the Montague decision, when investigating complaints under section 50 of FOIA, the Information Commissioner will look at how you carried out the public interest test by reference to the time of your decision which does not include the time of the internal review, if you conducted one.
However, it is sometimes possible that – during the Commissioner’s investigation or at Tribunal – new facts and evidence emerge since the time you made your decision on a request. If this happens, the Information Commissioner can take into account the new evidence in so far as this can inform the grounds of exemptions you rely on.
In R (Evans) v HM Attorney General  UKSC 21,  1 AC 1787, the Supreme Court said:
“(…) although the question whether to uphold or overturn…a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the individual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal.” [para. 73].
In APPGER v ICO and Foreign and Commonwealth Office (UKUT 0377 (ACC) (2 July 2015), the Upper Tribunal interpreted this as meaning that the FTT was entitled to take into account evidence post-dating the authority’s decision, finding that “there is nothing unusual about a decision-maker taking account of later evidence to inform a historical position” [para. 53]
In Maurizi, the Upper Tribunal decided that this interpretation was correct [para. 181 – 182].
Where events after the time of your decision have changed the balance of the public interest test in such a way that disclosure is inappropriate or undesirable, the Commissioner has discretion to decide what he orders you to do.
The Upper Tribunal confirmed this approach in Information Commissioner v HMRC & Gaskell ( UKUT 296(AAC), 20 July 2011).
The Commissioner appealed to the Upper Tribunal against the First-tier Tribunal’s finding that he had no discretion when deciding what steps to order in a decision notice. The Upper Tribunal decided that the Commissioner does have discretion as to what steps to order, if any. He does not have to order steps in every case.
The Upper Tribunal said: “In conclusion, I agree with both counsel that the requirement under section 50(4) that the decision notice should specify the steps which must be taken by the public authority does not amount to a mandatory obligation on the Commissioner to require steps to be taken…… As a matter of law the mandatory element of section 50(4) is that, if the Commissioner considers that the public authority ought to take any steps to comply with those statutory requirements, then he must specify them in the decision notice, along with the defined period within which they must be undertaken.”
Neither confirm nor deny
The exemptions in FOIA include a provision that, in certain circumstances, you may neither confirm nor deny whether you hold information. Where the FOIA exemption is qualified (ie requires a public interest test), the decision to neither confirm nor deny is itself subject to the public interest test. However, in EIR the only exception with a ‘neither confirm nor deny’ provision is regulation 12(5)(a) (international relations, defence, national security or public safety). This is subject to the public interest test.
For regulation 12(4)(c), the Commissioner recognises that a request formulated in too general a manner leaves you unable to confirm or deny whether you hold the requested information. This is because you cannot identify what information the requester wants.