Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal Nos. GIA 2932 and 2941 2012 

ADMINISTRATIVE APPEALS CHAMBER

 

Natural Resources Wales and SI Green (UK) Ltd v

Information Commissioner and Friends of the Earth Swansea

 

Oral hearing at Cardiff Civil Justice Centre 12 03 2013

 

Gerry Facenna of counsel, instructed by the Environment Agency Legal Services for the Environment Agency

Jeremy Hyam of counsel, instructed by Morgan La Roche, solicitors, for SI Green (UK) Ltd

Roy Jones representing Swansea Friends of the Earth

Robin Hopkins of counsel, instructed by the Information Commissioner Legal Services representing the Information Commissioner

 

DECISION

 

The appeals are allowed. For the reasons below, the decision of the First-tier Tribunal in respect of both appeals is in error of law and is set aside.

 

I direct that the appeals be referred to the First-tier Tribunal to retake the decisions under appeal. The appeals are to be considered by a new tribunal or tribunals. I refer all other case management directions to a First-tier Tribunal judge.

 

The stay on the release of the requested information imposed during the appeal remains in place unless a tribunal judge directs otherwise.

 

REASONS FOR DECISION

 

1 This is a single decision dealing with two separate appeals against a single decision of the First-tier Tribunal made on 27 04 2012. The First-tier Tribunal (Judge Dhanji sitting with two expert members) allowed an appeal by Roy Jones on behalf of Swansea Friends of the Earth against a decision of the Information Commissioner. The Information Commissioner refused on 29 06 2011 to direct the Environment Agency (the Agency) to release information about arrangements made between the Agency and SI I Green (UK) Ltd (Green) relating to financial guarantees about the operation of a landfill site at Cwmrhydyceirw, near Swansea.

 

2 The Agency and Green both applied for permission to appeal against the decision of the First-tier Tribunal. A judge of the First-tier Tribunal granted permission to appeal separately to both parties. I directed that the two appeals be consolidated and heard together. In earlier stages of these appeals the original applicant was named as Roy Jones. However he and colleagues made the application on behalf of Swansea Friends of the Earth rather than in individual capacities. All parties agreed that in the Upper Tribunal the original applicant should be named as Swansea Friends of the Earth.

 

3 At the hearing before me Mr Jones put the case for Swansea Friends of the Earth and counsel represented the three other parties. I am grateful to all for their clear statements of their cases and their cooperation in ensuring that the hearing and associated procedures were conducted efficiently. At the same time I respect the position that all four parties had different viewpoints about the decision of the First-tier Tribunal and that this is not a simple A v B case. But the central question is whether Natural Resources Wales, as successor to the Agency, should release the requested information about its relationships with Green.

 

4 There was no closed session at the hearing, and there is no closed annex to this decision.

 

5 A further, and more fundamental, issue about the identity of the parties arose after the hearing of the application but without the matter being raised by any party at the hearing. In April this year the Environment Agency ceased to be the responsible body in Wales for the regulatory functions that give rise to, and underlie, the application for information in this case. An agency of the Welsh Government took its place under devolution provisions empowered under the Government of Wales Act 2006 – specifically the Natural Resources Wales (Establishment) Order 2012 and linked regulations. This is Natural Resources Wales (equally known by its Welsh title of Cyfoeth Naturiol Cymru).

 

6 I became aware of the effect of this change on these appeals only when considering my decision. I notified all parties and invited a submission from Natural Resources Wales about the effect on the appeal of the change. The submission received in response was to the effect that the new appellant adopted in entirety the position of the Environment Agency.

However, that process inevitably but unfortunately caused delay to the issue of this decision.

 

7 It is plain that Natural Resources Wales is now the appellant in the main appeal and the name of the appeal is changed accordingly. It is not plain that Natural Resources Wales can adopt the approach taken in this case by the Environment Agency without more. I take that view for reasons that I discuss below. However, before dealing with those issues, I must consider whether the appellants succeeded in showing that the First-tier Tribunal erred in law in the decision which was taken in favour of Swansea Friends of the Earth.

 

Background

8 The original application to the Agency was made by Swansea Friends of the Earth under the Environmental Information Regulations 2004 (the EIR), (SI 2004 No 3391). The EIR applies the provisions of Directive 2003/4/EC of the European Parliament and the Council on public access to environmental information to England and Wales.

 

9 Swansea Friends of the Earth is concerned about a landfill site in a former quarry at Cwmrhydyceirw in the outskirts of Swansea (the Site). The Agency was responsible for granting permits under the Landfill (England and Wales) Regulations 2002 (SI 2002 No 1559) (the Landfill Regulations). Those regulations were made under the Pollution Prevention and Control Act 1999. Detailed substantive provisions for implementing that Act were made in the Pollution Prevention and Control (England and Wales) Regulations 2000 (SI 2000 No 1973) (the 2000 Regulations).

 

10 The law about control of landfill and similar waste disposal has been developing in recent years both at national level and in the European Union. As a result, the 2000 Regulations were replaced by the Environmental Permitting (England and Wales) Regulations 2007 and those Regulations were themselves replaced by the Environmental Permitting (England and Wales) Regulations 2010. It was common ground for current purposes the relevant provisions of these sets of regulations were to the same effect. However, those regulations operate to apply European Union directives at national level. And at national level the matter is one now devolved from the United Kingdom to the constituent nations. Thus, the 2010 Regulations were made jointly by the English Secretary of State and by the Welsh Ministers so are now, as they apply to Wales, devolved legislation. I set out the relevant provisions under the 2000 regulations below. 

 

11 Under the 2000 Regulations the Agency must be satisfied that any person to whom a landfill permit is granted is a fit and proper person to carry out the permitted activity. Under the Landfill Regulations the Agency is required or entitled to include conditions in any landfill permit granted to ensure that a person is a fit and proper person. Regulation 4(3)(c) of the 2000 Regulations provides that a person is not to be treated as a fit and proper person if:

 

“the person who holds or is to hold the permit has not made and either has no intention of making or is in no position to make financial provision adequate to discharge the obligations arising from the permit in relation to the specified waste management activity.”

 

12 The Agency commonly deals with the question of adequate financial provision for those purposes by requiring that a permit holder has entered into a bond to cover the potential liabilities arising from the use of the site under the permit. In this case the Agency reached a Performance Agreement with Green about the operation of the Site. That Agreement imposes a requirement that Green enter into a bond to deal with adequate financial provision and sets out details about the form and content of the bond and the extent of the financial provision.

 

13 The Agency and Green concluded the Performance Agreement for the Site on 9 12 2008. On the same day Green concluded a bond for certain sums to be paid to the Agency if specified events occurred.

 

The applications for information

14 Swansea Friends of the Earth have been concerned about operations at the Site for some time. They became aware of the proposed agreement between the Agency and Green. On 7 07 2008 they made a formal request to the Agency for “copies of the following items of documentation:

 

1 The overall level of the agreed financial provisions

2 The detailed breakdown of the level of agreed financial provisions

3 The method by which the financial provisions will be made

4 The Performance Agreement relating to the Financial Bond ( A copy of the current performance Agreement was provided to us by the Agency)

5 The Expenditure Plan.”

 

The immediate response to this was that figures had not then been agreed. Correspondence continued between the Agency and Swansea Friends of the Earth. That correspondence including a further formal request for specific financial information on 4 02 2010.

 

15 As the correspondence continued the Agency released much of the requested information to Swansea Friends of the Earth. But it withheld certain figures. Matter reached what Swansea Friends of the Earth regarded as a refusal by the Agency to disclose the full information that they were seeking so on 7 06 2010 they complained to the Information Commissioner. That letter of complaint listed six issues on which Swansea Friends of the Earth was still seeking information while accepting that the Agency had provided some of the original information sought.

 

16 Following this, the Information Commissioner advised Swansea Friends of the Earth to make a new request to supersede the previous requests as they may have been made before the relevant information was available. It was also not clear at that stage that the requests had been considered properly under the relevant legislation. The advice was to renew those parts of the original requests that were, in the view of Swansea Friends of the Earth, still outstanding. This was done on 13 09 2010. That updated the request to that date in terms of both the recording of the information and the application of any public interest test. The Information Commissioner promptly wrote to the Agency identifying the following information as outstanding:

 

(1) The exact overall level of the agreed financial provisions;

(2) The detailed breakdown of the financial provisions;

(3) The Performance Agreement relating to the Bond; and

(4) The Bond itself.

 

17 A formal response to the renewed application was given on behalf of the Agency on 18 10 2010. The response confirmed that the Agency held the information sought but that the following information would be withheld until 14 02 2011 (a date that could be extended):

 

1 The Bond dated 9 12 2008

2 The Performance Agreement dated 9 12 2008

3 Environmental monitoring figures

4 Operational year and landfill phase figures

5 Phase of site’s life figures

6 Site management figures

 

The right to withhold was asserted to arise under regulation 12(5)(e) of the EIR (commercial confidentiality). The response accepted that the EIR imposed a presumption in favour of publication but set out an analysis of the factors for and against disclosure which, in the view of the Agency, on balance justified non-disclosure.

 

The Information Commissioner’s decision

18 During the course of the Information Commissioner’s enquiries into the Swansea Friends of the Earth complaint much of the information sought from the Agency was released. This included copies of documents that Swansea Friends of the Earth had requested, though with redactions in the documents. But the Agency maintained its stance refusing release of sets of figures it redacted from the documents that were released. As part of this correspondence, Swansea Friends of the Earth agreed to narrow the formal request made. The request was then focussed on the figures redacted from the Performance Agreement and Bond of 9 12 2008.  

 

19 The Commissioner’s final decision about the complaint was issued on 29 06 2011 under reference FER0317507. The Commissioner found that the Agency was entitled to rely on regulation 12(5)(e) in respect of the redacted figures that the Agency continued to withhold. The Commissioner recorded a number of procedural breaches by the Agency in the way it responded to the requests for information made to it.

 

20 The Commissioner decided that the EIR provisions were rightly engaged by the application and that regulation 12(9) (emissions) did not disapply regulation 12(5)(e).

He decided that the information requested was confidential for the purposes of regulation 12(5)(e) and that disclosure would adversely affect that confidentiality. He finally considered the balance between that confidentiality and the public interest in disclosure. He concluded that it would not be in the public interest to release the redacted figures.

 

21 Taking stock at that point, the Agency was now responding to the focussed application made in 2010. It had by this stage responded significantly to the previous application, and in particular it had produced various documents. What it had also done was to redact certain figures from those documents. Further, the Commissioner had agreed that it was entitled under regulation 12(5)(e) of EIR to make those redactions.

 

22 Swansea Friends of the Earth appealed against that decision to the First-tier Tribunal. The grounds of appeal raised both specific issues about the information withheld by the Agency about the Site and the basis on which the Agency conducted the withholding and more general issues about such information being withheld generally in England and Wales. They indicated that they were happy with the matter being considered on the papers.

 

The appeal to the First-tier Tribunal

23 The First-tier Tribunal joined the Agency and Green as parties to the appeal. It invited all parties to indicate whether an oral hearing was requested. It was not requested, and the First-tier Tribunal dealt with the matter on the papers. With the benefit of hindsight, it can be seen that some of the confusion that has crept into this multi-party decision might have been avoided had the tribunal had the opportunity to discuss some of its views with all the parties.

 

24 The First-tier Tribunal decided on the facts that Green had not imparted any information in confidence to the Agency and therefore there was no duty of confidence applying to the information redacted. As a result, the First-tier Tribunal decided that regulation 12(5)(e) of the EIR did not apply. In its view there was no other legal basis on which the information could be withheld. Consequently it ordered that the redacted information must be disclosed. Although it was not necessary for its decision, the First-tier Tribunal also considered the position if regulation 12(5)(e) had been engaged. It was of the view that the public interest outweighed that of commercial confidentiality in this case and that this was not a reason for non-disclosure.

 

A stay in publication

25 Permission to appeal to the Upper Tribunal was granted by a First-tier Tribunal judge to both the Agency and Green. A stay was put on the release of the information while the appeal was being considered.

 

26 That stay is still in operation, and I renewed it at the oral hearing of this appeal. Further, at the hearing it was agreed by all four parties that if the appeal of any of them was successful then they were content that I should determine the appeal myself without any further hearing by me or the First-tier Tribunal.

 

27 As I conclude that there must be a further consideration of these appeals by the First-tier Tribunal I also direct that the stay on publication remains in place until that takes place or further directions are made by a judge.

The law

28 I do not consider it necessary to set out all the relevant legislation dealing with the general regime of landfill permits. It is common ground between all parties that the information requested by Swansea Friends of the Earth was information within the scope of the EIR. Likewise it was common ground that the Freedom of Information Act 2000 is not relevant to the request. Nor were any of the main provisions of the relevant regulations in dispute save for the key provisions that specifically apply to the exemption sought by the Agency in this case.   More generally, it is clear from the documents, if I may say so, that Swansea Friends of the Earth has an impressive knowledge of the detail of the relevant legislation and the procedures for granting landfill permits so I do not need to add explanations to this decision on such points.

 

29 All the parties concerned in this case have focussed the discussion on the key provisions in question – in particular, regulation 12(5)(e) of the EIR. It is therefore only necessary to detail that provision and those other provisions which provide the context in which it operates together with any provisions relevant to the jurisdiction of this tribunal to hear and decide the appeal. However, I was also invited by Swansea Friends of the Earth to comment more broadly on the release of information in cases such as this. That request was based on what Swansea Friends of the Earth saw as an inconsistent approach by the Agency to the release of information about waste disposal. However, none of the other parties pursued before me any argument that this case was determinative of these issues in connection with landfill permits generally. The First-tier Tribunal concluded its decision by emphasising (at paragraph [62]) that its decision was based on the evidence in this appeal and a different decision might be reached on other evidence in other cases. I adopt the same approach here. I do so in part because future decisions in Wales are for Natural Resources Wales and it will decide its own approach to such matters.

 

30 My concern is therefore with two questions:

(a) Was the First-tier Tribunal correct in law in deciding that regulation 12(5)(e) did

not apply to this case?

(b) If it was wrong in law on that, what should I decide?

 

Regulation 12

31 Regulation 12 of the EIR provides:

 

“Exceptions to the duty to disclose environmental information

 

12.—(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

(a) an exception to disclosure applies under paragraphs (4) or (5); and

(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

 

(2) A public authority shall apply a presumption in favour of disclosure.

 

(3) To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13.

 

(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—

(a) it does not hold that information when an applicant’s request is received;

(b) the request for information is manifestly unreasonable;

(c) the request for information is formulated in too general a manner and the public authority has complied with regulation 9;

(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or

(e) the request involves the disclosure of internal communications.

 

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

(a) international relations, defence, national security or public safety;

(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;

(c) intellectual property rights;

(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;

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

(f) the interests of the person who provided the information where that person—

(i) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;

(ii) did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and

(iii) has not consented to its disclosure; or

(g) the protection of the environment to which the information relates.

 

(6) For the purposes of paragraph (1), a public authority may respond to a request by neither confirming nor denying whether such information exists and is held by the public authority, whether or not it holds such information, if that confirmation or denial would involve the disclosure of information which would adversely affect any of the interests referred to in paragraph (5)(a) and would not be in the public interest under paragraph (1)(b).

 

(7) For the purposes of a response under paragraph (6), whether information exists and is held by the public authority is itself the disclosure of information.

 

(8) For the purposes of paragraph (4)(e), internal communications includes communications between government departments.

 

(9) 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).

 

(10) For the purposes of paragraphs (5)(b), (d) and (f), references to a public authority shall include references to a Scottish public authority.

 

(11) Nothing in these Regulations shall authorise a refusal to make available any environmental information contained in or otherwise held with other information which is withheld by virtue of these Regulations unless it is not reasonably capable of being separated from the other information for the purpose of making available that information.”

32 As relevant here, regulation 12 as a whole provides grounds on which a public authority may, but is not required to, withhold information. In all cases it may only do so if satisfied that the public interest in withholding the information outweighs the public interest in disclosure.  Specifically, in a case where the information in question is commercial or industrial information it may withhold that information if and in so far as disclosure will adversely affect confidentiality. But it may do so only if the confidentiality is provided by law, and the reason for it being provided is to protect a legitimate economic interest.

 

The First-tier Tribunal’s approach to regulation 12

33 It was common ground before the First-tier Tribunal that the information withheld from Swansea Friends of the Earth was commercial or industrial. That being so, the First-tier Tribunal rightly identified the questions for it to decide under regulation 12 as being the tests under regulation 12(5)(e) and regulation 12(1)(b).

 

34 The First-tier Tribunal did not in the event consider it necessary to decide on the application of regulation 12(1)(b). On its analysis of the circumstances relevant to the provision of the specific information in question it found that the conditions of regulation 12(5)(e) were not met. This was because it found that the information in question was not imparted in circumstances that gave rise to an obligation of confidence.

 

35 The tribunal’s reasoning on this issue is set out at paragraphs [33] to [39].  The reasoning is guarded in that at paragraph [33] the tribunal indicates that it is not necessarily relevant how Green provided the relevant information or whether Green applied for the information to be kept confidential. Rather the question was whether a common law breach of confidence arose under the decision in Coco v A N Clark (Engineers) Ltd [1969] RPC 44.

That, to be correct, is a decision about the equitable doctrine of confidential communication (not the common law) that may arise otherwise than by contract between the parties. In his decision in that case Megarry J (at 47) summarises the issues that bring the equitable doctrine into play as follows:

 

“In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself … must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

 

36 The First-tier Tribunal found at paragraph [38] that the second of those elements was missing in this case. It therefore declined (at paragraph [39]) to consider whether either of the other tests were met. So the tribunal declined to form any view about whether there was a legitimate economic interest to be protected or the consequences of disclosure. That approach is somewhat undercut by the tribunal’s later reasoning that there was, on balance, a public interest in disclosure as that position could only be reached fully by considering any legitimate economic interest and harm that could be caused by any disclosure.

 

37 The tribunal explained that passing information in this case was not within the second limb of the Megarry test in paragraphs [36] and [37]. In the tribunal’s view the information came about as a result of a process of negotiation between Green and the Agency and it was not in that sense “imparted”. It relied specifically on the evidence of a witness that the process of generating the relevant figures was iterative and that the information was therefore generated by the two parties together and not imparted by one to the other. This reasoning was then supported by a reference to section 41 of the Freedom of Information Act 2000 which the tribunal considered analogous. 

 

Grounds of appeal

38 The Agency, Green and the Commissioner all challenged that reasoning. In examining the challenges I take the same broad approach as the First-tier Tribunal. Each of the challengers (as I call them to avoid any entanglement in the question of identifying parties as appellants or respondents on this issue) made the same central submission although each put forward a separate analysis of the basis for that submission as applied to that challenger. All parties put in full written submissions to support their arguments before me. I am grateful to all of them for the thoroughness with which those written submissions were prepared and then presented. But that thoroughness and level of focus means that I can take the liberty of not repeating in this decision all their arguments, in particular where the challengers all made the same key points with different nuances to reflect their different positions in the appeals.

 

39 The Agency’s grounds of appeal challenge the First-tier Tribunal’s analysis on several grounds. The first is that there was a statutory obligation in place, so that the Agency did not have to rely on equitable grounds. The tribunal had erred in confusing the identity of the protected information with the question of the specific documents in which that information was or might be found. The latter was not relevant as the information retained its character wherever it was located in any record. On that basis, the information was protected by the terms of the Pollution Prevention and Control (England and Wales) Regulations 2000, the 2000 Regulations.

 

40 Regulation 31 of the 2000 Regulations provides that no information relating to the affairs of any business is to be included in any register maintained under those Regulations without the consent of the person carrying on the business if, and so long as the information “is, in relation to him, commercially confidential…”. The Agency argued that as the information relevant to these appeals was produced for the purposes of a licence under the 2000 Regulations it was within the protection of regulation 31.

 

41 Regulation 31(12) defines the key issue of confidentiality as follows:

 

“Information is, for the purposes of any determination under this regulation, commercially confidential, in relation to any individual or other person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or other person.”

 

42 The Agency argued in the alternative that even if this was wrong the tribunal had not applied the Megarry test correctly. The analogy with section 41 was misplaced. The information was provided by Green even if the process of provision was iterative. If the reasoning of the tribunal was correct it would represent a considerable weakening of the application of the doctrine of confidential communication as between commercial operators and public authorities.

 

43 The Commissioner agreed with the arguments provided by the Agency. The Commissioner had in his notice considered the relevant information, not specific documents. He agreed that that information had been provided as part of the application under the 2000 Regulations and was therefore within the scope of those Regulations.  The Commissioner supported the other arguments put forward by the Agency. The Commissioner’s decision to that effect should remain in force.

 

44 In fairness to Swansea Friends of the Earth, the Commissioner’s notice was not entirely consistent on the difference between information and the documents and records containing the information, or as clear as the submissions to the Upper Tribunal. In particular, at paragraph [49] of the Commissioner’s decision the “information in question” is summarised as being two documents, not – as was the case before the First-tier Tribunal – information redacted from those documents. In so far as that implies that the documents were the information it is wrong in law. But that may be a source of some of the confusion in this appeal. 

 

45 For the Commissioner, Mr Hopkins took further the supposed analogy with section 41 of the FOIA. That was wrong, he argued, in a way made clear by Upper Tribunal Judge Lloyd-Davies in Chichester District Council v IC and Friel (GIA 1253 2011). In that the judge resisted the analogy to section 41 when considering arguments about regulation 12(5)(e) because the test of “obtaining” information from another by a public authority, specifically made a requirement of the operation of section 41 by subsection (1)(a) is not present in any form in regulation 12. Further, “there is no necessary implication that such wording should be imported.” That being so the tribunal’s reliance on caselaw about section 41 was misplaced in this appeal.

 

46 The arguments for Green took the same approach, save that Mr Hyam for Green could articulate – and did – the issues directly relevant to its concerns about confidentiality. I intend no disrespect to Mr Hyam in dealing with his arguments briefly. It is clearly of relevance to the strength of the arguments put for the appellants that both the Agency and Green agreed in large part about the contended errors made by the First-tier Tribunal as they did about the background to the appeals. I accept his arguments in that way. Of central concern is Mr Hyam’s submission, which I accept as a critical element in this appeal, that his client maintains that in its view it is a commercial imperative that the Agency (and now, I would assume having not heard him on the point, Natural Resources Wales) maintains that confidentiality.

 

47 In response, Swansea Friends of the Earth supported the reasoning of the tribunal. The submission was that the tribunal was correct in its approach to the identification of the process from which the contested information emerged. This was supported by a careful analysis of the way in which the information requested and other information had been brought together in the relevant documentation and when and how the key figures emerged in the discussions. The submission was based firmly on the principles of transparency which lie at the heart of the approach adopted in the Pollution Prevention and Control Act 1999 and

European legislation to which it seeks to give effect.

 

Conclusion

48 The central issue in this case is whether Swansea Friends of the Earth can demand that (now) Natural Resources Wales release a short but significant series of figures that form part of the arrangements made between the Agency and Green under which the Agency authorised Green to use the Cwmrhydyceirw quarry. Other information sought by Swansea Friends of the Earth was released to it, and therefore to the public. The question is therefore whether the Agency – and, now, Natural Resources Wales – was required or entitled by law to keep those figures from the public eye because of the commercial sensitivity of the figures. The starting point for Green is the reaffirmation by Mr Hyam that Green wishes to maintain the figures as confidential. This must be considered against the starting point,  emphasised by Swansea Friends of the Earth, that the requirement for transparency in dealing with such matters is itself a requirement of the law.

 

49 I agree with the challengers, as I term them above, that the focus is on this information, not on any particular document or form in which those figures are recorded or any process by which they emerged. I accordingly agree with the challengers that in so far as the First-tier Tribunal concerned itself with the specific location of those figures in specific documents produced as part of the licensing process rather than the information itself it was wrong in law. It may be that the terms of the Commissioner’s decision and the identification of the withheld information as information redacted from particular documents both served to sidetrack consideration of these appeals into an examination of specific documents rather than specific information. That does not, however, alter the fact that it is the information that had been recorded, rather than the place or places where it was recorded, that is the proper focus of the appeals.

 

50 I also agree with the challengers that this must be considered under the terms of the regulation 12 of the EIR and the 2000 Regulations without reference to section 41 of the FOIA. As Judge Lloyd-Davies has pointed out, the tests in section 41 and regulation 12 are separate and cannot be read together to include in one something in the other simply because they deal with similar issues.

 

51 The First-tier Tribunal was correct in focussing on regulation 12(5)(e) of the EIR in seeking to decide whether the figures should be released. And it was right in doing so to adopt from the Commissioner’s decision the questions to be considered in applying that regulation. It erred in law in its approach to what in the context of these appeals was the most important strand of that test. This is that disclosure of the relevant information would adversely affect confidentiality “where such confidentiality is provided by law to protect a legitimate economic interest”.

 

52 Here that must be regarded as a reference across to regulation 31 of the 2000 Regulations. Regulation 31(1)(a) makes an express reference to commercial confidentiality. The factual background to these appeals makes it plain that the figures in question here were figures produced within the 2000 Regulations framework and were subject to the necessary application and ruling to protect confidentiality of them. The fact that those figures could be found in one document rather than another at any later point does not alter that essential starting point within the scope of regulation 31.

 

53 To repeat the requirements of regulation 12(5)(e) for convenience, they are that the Agency may withhold information if disclosure of the recorded information would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest.

 

54 Is the legal protection under the 2000 Regulations “provided to protect a legitimate economic interest”? That is a matter of law. The 2000 Regulations were made under the Pollution Prevention and Control Act 1999. That Act is essentially an Act enabling regulations to be made to implement the underlying European Council Directive, Directive 96/61/EC.  One of the purposes of that Directive is that the licensing process be open to public scrutiny. That is stated in paragraph 23 of the preamble to the Directive:

 

“23. Whereas, in order to inform the public of the operation of installations and their potential effect on the environment, and in order to ensure the transparency of the licensing process throughout the Community, the public must have access, before any decision is taken, to information relating to applications for permits for new installations or substantial changes and to the permits themselves, their updating and the relevant monitoring data”.

 

55 Practical effect is given to that by Article 15 of the Directive:

 

“Article 15

Access to information and public participation in the permit procedure

1. Without prejudice to Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (14), Member States shall take the necessary measures to ensure that applications for permits for new installations or for substantial changes are made available for an appropriate period of time to the public, to enable it to comment on them before the competent authority reaches its decision.

That decision, including at least a copy of the permit, and any subsequent updates, must be made available to the public….”

 

Further provisions follow but it is not necessary to consider them for this decision. What is clear is that the general thrust of that aspect of the legislation is for disclosure. It must be noted that the European legislation is put partially in terms of the release to the public of documents rather than the release of information. However, that is not now an issue in this case as the relevant documents have been released subject only to the redactions. No argument was put to me that further disclosure was required by reason of the European legislation. And I see nothing in that legislation that requires disclosure to take place in such a way as to frustrate the central purpose of that legislation in controlling pollution.

 

56 That applies here. Green was required to produce to, and agree with, the Agency the relevant figures to be put in the Bond and Agreement. Those figures had to be agreed and so had to be recorded as part of the relevant regulatory process. Plainly any individual or body applying for a licence in this way is acting legitimately. When that application is being made in a commercial context it is equally plain that the applicant has an economic interest in the outcome of the process. The confidentiality here was, as a result of the discussions that took place, strictly limited to certain sensitive figures, themselves representing actual or potential sums of money. At the stage when this reached the First-tier Tribunal nothing else had been withheld. Once it is clear that the information withheld under the 2000 Regulations is limited in this way I have no hesitation in holding that the legal protection of the 2000 Regulations is rightly invoked in this case to protect a legitimate economic interest. 

 

57 It follows that the Commissioner was right in law in taking the view that the figures remained under the protection of the 2000 Regulations and the First-tier Tribunal was wrong in law in finding otherwise.

 

58 On that basis the requirements of regulation 12(5)(e) are met. So therefore is the requirement of regulation 12(1)(a).

 

59 It should be noted for the sake of completeness that the Commissioner’s decision agreed with the argument by the Agency that any information produced that was not placed on the public register was covered by what the decision termed the common law of confidence. I take that to refer to the equitable doctrine as defined by Megarry J and set out above. However, I do not consider that this issue is relevant to the targeted request for the redacted figures that now forms the request for information. I do not therefore pursue that issue further. 

 

A balance of interests

60 The consequence is, as all the challengers recognised, that the balancing of interests required by regulation 12(1)(b) becomes the essential next step in the decision.

 

61 The First-tier Tribunal did undertake this exercise, but I find that of little assistance. The tribunal had plainly erred in law in its prior analysis and had wrongly found that this issue was not decisive. So its exercise was, in its own view, not material to its decision. My decision means that it now is material and must be decided.

 

62 The one common area of submission by all four parties to me at the oral hearing earlier this year was that if I decided that the First-tier Tribunal was wrong in law in its decision then I should set aside its decision and make a decision in place of that of the First-tier Tribunal. Further, I was invited by all parties to do so without a further hearing but taking into account evidence that had been produced after as well as before the First-tier Tribunal hearing.

 

63 I have decided not to take that course of action but to refer the matter back to the First-tier Tribunal. As I was invited by the parties as indicated above, I consider I should indicate why, given that in doing so I am appear to be ignoring the one point of consensus in the hearing before me and that I am thereby plainly extending the appeal process further.

 

64 I am aware that the application made by Swansea Friends of the Earth was made in 2010. But I am also aware that that was a renewed application made at the suggestion of the Commissioner. It would be open to Swansea Friends of the Earth to renew again its  focussed request, this time to Natural Resources Wales, if it felt that bringing the application up to date in 2013 and therefore to bring it within the specific scope of the now devolved authority would help. That step might serve only to start the application and appeal process a third time, which is something I am certainly not seeking to encourage.

 

65 However, I have concluded that the balancing exercise under regulation 12(1)(b) fairly requires a hearing that includes representatives of Natural Resources Wales and allows both that body and the other parties to make submissions about the specific request. Natural Resources Wales may of course adopt the same views as the Agency did. But it is a separate body with separate powers and operating in the specific context of Wales and that must be a decision for Natural Resources Wales to take after its own consideration of all relevant issues. It is not clear without further enquiry or argument how far the specific issues relevant to the decision of the Agency are the same as those that Natural Resources Wales would consider

 

66 If a hearing is necessary, it is in my view more expedient to have this matter heard by the expert tribunal experienced in conducting balancing exercises of this sort, rather than by me or another Upper Tribunal judge.  Further, as Natural Resources Wales is now the key decision maker about the release of this information, this appeal may touch on issues arising from the direct effect in Wales of European legislation. If such issues arise, the interests of the parties are better protected by having access to an appeal again to the Upper Tribunal rather than being confronted with the restrictive rights of appeal, and costs, of an appeal direct to the Court of Appeal.

 

67 I have heard no argument on the issues of jurisdiction, so I tread softly. These appeals are now focussed on the resolution of a policy question. The primary test that must now be applied to the question whether these figures be published by Natural Resources Wales is the question whether, in all the circumstances of the case, the public interest in maintaining the redactions of the figures from the documents published outweighs the public interest in having those figures published. That must take into account the evidence now on record that the publication of the figures will allow the public and any economic competitor to have the benefit of any analysis of those figures in the context of the information that has been published. But it is nonetheless a decision to be taken in the context of the transparency directed by the relevant European Directive. This is now a matter for which an executive authority of the Welsh Government has authority under devolved legislation enacted to give practical application to directly effective European legislation in Wales.

 

68 With those considerations in mind, my decision is to set aside the decision of the First-tier Tribunal on the ground that it erred in law. I refer the matter back to the First-tier Tribunal to consider the appeals again in the light of the guidance in this decision and for it to give full and fresh consideration to the balancing of policy considerations under regulation 12(1)(b) of the EIR.

 

69 I make no procedural directions for the new hearing beyond the direction that it be considered by a new tribunal. However, I formally confirm that the stay on publication of the redacted information remains in place pending that further hearing or further direction of a First-tier Tribunal judge.

 

David Williams

Upper Tribunal Judge

24 09 2013

[Signed on the original on the date stated]