April 29th, 2012

First-Tier Tribunal caselaw this past week has focused on the intersection between the common law of confidence and statutory rights of access to information. Moss v IC & Home Office (EA/2011/0081) (see Anya’s post here), the Tribunal analysed section 41(2) of FOIA (information provided in confidence). Shortly thereafter, the Tribunal handed down its decision in Rory Jones (on behalf of Swansea Friends of the Earth) v IC, The Environment Agency and SI Green Ltd (EA/2011/0156). This concerned the slightly different provision under regulation 12(5)(e) of the EIR. Regulation 12(5)(e) EIR provides that “a public authority may refuse to disclose information to the extent that its disclosure would adversely affect… the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.

When a landfill operator such as SI Green (UK) Ltd (“Green”) obtains a permit from the Environment Agency (EA”) to operate a waste landfill, financial provision is made for covering the costs of something going wrong. Most commonly, this is done by means of a bond. In the event that any of the events specified by the bond occur, the amount secured by the bond is paid directly to the EA which can then use the funds to put matters right.

In this case, the appellant requested information relating to financial guarantee arrangements put in place by Green pursuant to its EA permit for operating a waste landfill site at Cwmrhydycierw Quarry near Swansea. The EA provided a redacted version of two documents, a performance agreement and the associated bond. It relied on regulation 12(5)(e) EIR in redacting information concerned with the amount of the bonded sum Green is required to secure for each year of operation of the landfill and going forward through a period of 60 years after operations terminate. It contended that this was commercially sensitive confidential information.

The Tribunal agreed with the Appellant that regulation 12(5)(e) was not engaged, because the redacted information was not subject to confidentiality provided by law. First, it was not provided by legislation. The Pollution Prevention and Control (England and Wales) Regulations 2000 enable landfill operators to apply for any information they provide to the EA to be excluded from the public register on the grounds that it is commercially confidential. In this case, Green had made such an application for different information to that redacted here.

Secondly, the information was not subject to common law confidentiality either. As in the Moss case, the Tribunal stuck to the 3-limb test laid down in Coco v AN Clark. In this case, the respondents’ case came unstuck on the second limb, which requires that the information must have been imparted in circumstances importing an obligation of confidence. In this respect, the Tribunal applied regulation 12(5)(e) in a very similar way to s. 41(2) of FOIA. It held that “that element [the second Coco limb] implies the communication of the information by one party to the other. The evidence in the present case, however, is that the information came into existence through a process of negotiation between the parties”. It added that “we recognise that section 41 refers more explicitly to information being “obtained” by the public authority from any other person. That is not the language of regulation 12(5)(e). However, we consider that the same element is imported by the incorporation of the common law test of breach of confidence into regulation 12(5)(e) of the EIR.”

As the exception was not engaged, the public interest test was not necessary. Nevertheless, the Tribunal held that even if the exception had been engaged, the public interest favoured disclosure. The respondents’ cases were based largely on the assumption that the redacted information would reveal useful information about Green’s operating costs in relation to the landfill site in question. The Tribunal found that the evidence before it fell “far short” of supporting that assertion. On the other hand, the public interest in disclosure was made out: “the purpose of the bond is to provide the public with protection should things go seriously wrong. Disclosing the information would allow the public to understand the level of protection that is being provided to them and for them to feel confident that the provision is sufficient to deal with potential difficulties.”

Robin Hopkins

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