London Borough of Hammersmith and Fulham v The Information Commissioner [2026] UKFTT 1056 (GRC)

[2026] UKFTT 01056 (GRC)Case References: FT/EA/2025/0244
First-tier Tribunal
(General Regulatory Chamber)
Date 20 July 2026
Information Rights
Determined without a hearing
Before
TRIBUNAL JUDGE SHENAZ MUZAFFERTRIBUNAL MEMBER JO MURPHYTRIBUNAL MEMBER PIETER DEWAAL
Between
LONDON BOROUGH OF HAMMERSMITH AND FULHAMAppellantTHE INFORMATION COMMISSIONERRespondentDecision: The appeal is allowed. The Tribunal finds that the Decision Notice issued by the Commissioner dated 05 June 2025 is void for uncertainty and not in accordance with the law. The Tribunal makes a Substituted Decision Notice as follows:1.The London Borough of Hammersmith and Fulham (“the Appellant”) must take the following steps within 28 days of promulgation of this Decision:i.Identify and disclose to the requester any parts or sections of the ‘Hammersmith Bridge Stage 2 Outline Business Case for Stabilisation, Strengthening and long-term operations and maintenance’ (referred to in the Decision Notice as “the OBC”) or any information otherwise contained within the OBC which the Appellant publishes or has previously published on its own website/s, past or present;ii.Identify and disclose any parts or sections of the OBC or any information otherwise contained within the OBC which are or have been included in public reports or papers produced by the Appellant, including Cabinet or committee reports or papers;iii.Identify and disclose any parts or sections of the OBC or any other information otherwise contained within the OBC which are or have been published by the Appellant in any other format or in any public forum.2.Any failure to abide by the terms of the Tribunal’s Substituted Decision Notice may amount to contempt which may, on application, be certified to the Upper Tribunal.REASONS
[1]This is an appeal against a decision of the Information Commissioner (“the Commissioner”) dated 05 June 2025, reference IC-325217-D8Q9 (“the Decision Notice”).[2]The parties opted for a paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with rule 2 and rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (as amended).

Factual background

[3]The appeal relates to the application of the Environmental Information Regulations 2004 (“the EIR”).

The request and response

[4]The requester (a councillor of the Appellant) made a request to the Appellant on 26 April 2024 in writing as follows:
“One of my constituents has enquired about the future plans for Hammersmith Bridge. The DfT [Department for Transport] responded with “As the asset owner and project lead, LBHF has now submitted a business case for the second stage of works to the Department for Transport. The submission of such a case is a condition for the release of any further government contribution to the cost of repairing the bridge.”
Could I please have a copy of the business case?”.[5]On 07 May 2024 the Appellant responded to state that the ‘business case’ contained highly sensitive commercial information about the bridge and that access to it was restricted to those who needed to see it for the purposes of helping to progress an agreement with the DfT (Department for Transport). The ‘business case’ was later identified by the Appellant during the Commissioner’s investigation of the requester’s complaint as the ‘Hammersmith Bridge Stage 2 Outline Business Case for the Stabilisation, Strengthening and long-term operations and maintenance’ and referred to in the Decision Notice as “the OBC”.[6]On 08 May 2024 the requester emailed the Appellant as follows: “I don’t find this decision acceptable and I repeat my request under the provisions of the Freedom of Information Act. My constituents are affected by the continued closure of Hammersmith Bridge and I am a member of the Audit PAC. I do not believe that the business case information is subject to one of the exemptions (listed in Part II of FOIA) but please feel free to redact any commercially sensitive information. I look forward to having sight of the document”.[7]It appears from the Appellant’s subsequent response to the requester’s request for an internal review (see below) that the Appellant responded to the requester on 22 May 2024 in the following terms: “I can confirm that London Borough of Hammersmith and Fulham holds the information you requested. However, we are withholding that information since we consider that the following exemptions apply to it. We consider that the qualified exemption set out in Section 43 (Prejudicial to commercial interests) subsection 2 applies to the information requested. Therefore, we have decided to withhold the information”.[8]The requester submitted a request for an internal review on 19 July 2024.[9]The Appellant responded to the request for an internal review on 09 August 2024, upholding the initial response that the information held was exempt from disclosure pursuant to section 43(2) of the Freedom of Information Act 2000 (“FOIA”). The Appellant stated that disclosure of the OBC would or would be likely to prejudice the commercial interests of the Appellant.[10]The Appellant stated that it had balanced the public interest in withholding the information against the public interest in its disclosure. The identified factors in favour of disclosure were listed as "the general proposition of maximising openness that the Council aspire to” and “isolated information requested is provided”.[11]In relation to factors in favour of withholding the information, the Appellant stated the following: “The business case contains the Council’s strategy for the procurement of the works to the bridge. To put this information in the public domain would undermine the integrity of the procurement process. There is also throughout the business case a discussion about the potential risks in relation to the project. Disclosure of this information would be commercially disadvantageous for the Council. We see this as a single project and the submission and approval of a business case is a continuing process, which has not been completed and will not be completed for some considerable time. Because of the individual nature of the business case and the fact that it is work in progress, we do not think that individual elements of it can be separated out and subject to public disclosure”.[12]The Appellant concluded that the public interest in maintaining the exemption outweighed the public interest in disclosing the information.

The complaint and the Commissioner’s investigation

[13]The requester lodged a complaint with the Commissioner on 12 August 2024. In particular, he stated that: “The idea that revealing the Council’s strategy for the procurement of public works would undermine the integrity of the procurement process is plainly ridiculous. Public procurement is meant to be an open and transparent process in order to ensure a level playing field and to prevent corruption”.[14]The Commissioner accepted the complaint for investigation on 21 August 2024.[15]On 22 August 2024 the requester wrote to the Commissioner to state that it should be possible for the Appellant to provide an answer to his query without revealing any commercially sensitive information. He stated that he would be willing to receive the document with redactions, if such redactions could be justified to the Commissioner.[16]On 22 November 2024 the Commissioner wrote to the Appellant to ask a series of questions about its response to the information request, including as to which party/parties had commercial interests that would (or would be likely to) be prejudiced, what the link was between disclosure of the requested information and any prejudice to commercial interests which may occur, and why disclosure of the withheld information would (or would be likely to) prejudice a party’s commercial interests. Questions were also raised about the public interest arguments in favour of disclosure and against disclosure, and about how the integrity of the procurement process would be damaged by disclosure of the requested information.[17]On 05 December 2024, the Appellant responded to the Commissioner and provided a copy of the withheld information, namely the OBC. The Appellant stated that approval of the OBC by DfT was a pre-condition for the release of any public funds for the restoration of the bridge and was therefore highly sensitive. The Appellant asserted that the refurbishment of the bridge was likely to be one of the most complex heritage engineering projects ever undertaken in the UK and that disclosure of the OBC risked undermining the project and potentially adding to its cost and complexity. The Appellant stated that it was its own commercial interests that would be likely to be prejudiced if the information in the OBC was disclosed.[18]The Appellant further stated that the OBC contained numerous documents which set out the development of its strategy for the procurement of the works of stabilisation and strengthening of the bridge. Disclosure of those documents would enable future participants in any procurement process to gain commercial insights into the Appellant’s planning processes. In addition, the OBC included details of the process of pre-market engagement and planning, as well as details of a wide range of public sector bodies who took part on a confidential basis. If such information were to be made publicly available, it would reduce the value of the pre-market engagement and discourage contracting authorities and contractors to engage in such a process.[19]In relation to the test for engagement of the exemption in section 43 of the FOIA, the Appellant stated that it relied on the second limb of the exemption (that disclosure would be likely to prejudice commercial interests) rather than asserting that disclosure would prejudice commercial interests. The Appellant stated that it had been “entirely open about its plans for the bridge" and that “the reports about what is happening are in the public domain and available on the Council’s website”.[20]In conclusion, the Appellant stated the following: “We have given thought as to whether the documents could be redacted so that only certain elements are made available. Whilst the business case contains information which is already in the public domain and further information which will be made available as part of the procurement, the business case is very much a single document. We consider that it would be impracticable to start removing elements of it as well as being extremely resource heavy”.[21]On 20 December 2024 the Commissioner contacted the Appellant to state that he believed that the withheld information was environmental information which therefore fell to be considered under the EIR rather than the FOIA. The Commissioner attached a series of questions relating to regulation 12(5)(e) of the EIR, which it was suggested would be the most equivalent exception.[22]The Appellant responded on the same date, stating that it did not accept that the business case contained “environmental information” as defined in the EIR. The Appellant went on to state that, if the information did constitute environmental information, then they considered that it would fall within the exception in regulation 12(5)(e) of the EIR as it was clearly information of a commercial nature. The Appellant highlighted the economic, financial and commercial dimensions to the OBC, all of which were described as legitimate economic interests for it and also relied on its previous submissions which it said were equally applicable if the request were to be considered as falling within the EIR. The Appellant concluded by reiterating that it had considered whether the document could be redacted but that it was not practical to exclude individual elements from it. As such, it maintained its position that the OBC was exempt from disclosure.[23]On 14 March 2025 the Commissioner wrote to the Appellant again, indicating that the case was being considered under the EIR. The Commissioner stated that “We can accept that some information detailed in the Stage Two OBC [i.e. the business case] engages the exception. However, as the Council itself has noted, there is information in the public domain already which can be found in the OBC. The Commissioner cannot accept that information already in the public domain can be withheld in reliance on an exception unless a further explanation can be attributed to it”. Further questions were asked by the Commissioner about the process for submission of the OBC to the DfT, the non-disclosure agreement that had previously been referenced by the Appellant, and whether the OBC had been shared with the requester in their capacity as a councillor.[24]On 03 April 2025 the Appellant responded to the Commissioner. Whilst the Appellant accepted that the OBC contained some information which was in the public domain, it maintained that the document needed to be viewed as a whole and was not something that could be broken down into constituent parts for individual release. The Appellant stated that “It is difficult to see the value of disclosing information in the public domain, if it can be accessed anyway. Disclosure simply causes potential difficulties in relation to the ongoing potential procurement”. The Appellant also provided responses to the specific questions raised by the Commissioner.[25]The Decision Notice was issued on 05 June 2025.

Decision notice

[26]The Commissioner determined that the Appellant should have considered the request under the EIR. The Commissioner’s decision was that, in the circumstances of the case, the Appellant was entitled to rely on the exception at regulation 12(5)(e) to withhold the requested information which was not already in the public domain, and that the public interest favoured maintaining the exception in that regard. However, the Commissioner required the Appellant to disclose the information contained in the OBC which was already in the public domain within thirty calendar days of the date of the Decision Notice.[27]The Commissioner interpreted the words “would adversely affect” in regulation 12(5) of the EIR as setting a relatively high threshold in terms of likelihood which has to be met in order for any of the regulation 12(5) exceptions to be engaged. The Commissioner stated that it was not sufficient that disclosure may or could have some level of adverse effect, but rather that disclosure ‘would’ have an adverse effect.[28]The Commissioner outlined the four-stage test, as set out in his Guidance, which has to be met before the exception in regulation 12(5)(e) of the EIR can be engaged, namely: “1. The information is commercial or industrial in nature. 2. The confidentiality is provided by law. 3. The confidentiality is protecting a legitimate economic interest. 4. The confidentiality would be adversely affected by disclosure”.[29]The Commissioner was satisfied that the OBC was a commercial document. In considering whether the information was subject to confidentiality, the Commissioner considered whether any confidentiality was imposed by the common law duty of confidence, contractual obligation, or statute. The Commissioner accepted the Appellant’s submissions that, during the planning process, information had been provided to the Appellant in confidence which was in the OBC. He therefore accepted that this limb of the four-stage test was met, albeit not in relation to the information that was already in the public domain as that information was not confidential by virtue of it being available elsewhere.[30]Regarding the third limb of the test, the Commissioner outlined that the Appellant would need to establish that it was more probable than not that disclosure would adversely affect an economic interest. Based on the Appellant’s submissions, the Commissioner accepted that there was a real and genuine risk that disclosure of the majority of the OBC would adversely affect the legitimate economic interests of the Appellant. However, he was only satisfied that this limb was met in relation to such information that was not already in the public domain.[31]The Commissioner was also satisfied that the fourth limb of the test was met, concluding that disclosure of information relating to a confidential process would inevitably harm the confidential nature of that process and the associated information, and would also harm the identified legitimate economic interests.[32]The Commissioner therefore accepted that regulation 12(5)(e) of the EIR was engaged to the extent that disclosure of the information would adversely affect the confidentiality of the commercial information. However, he held that the relevant threshold was not met in relation to the information that was already in the public domain.[33]The Commissioner went on to consider the public interest test, noting that there is always a public interest in promoting transparency and accountability to promote greater public awareness and understanding. To that end, he noted that there “is already significant information in the public domain regarding the restoration project with a dedicated web page including many subsections with Phase 1 Stabilisation programme and Phase 2 Strengthening and restoration programme” and that “further information will be disclosed as part of the procurement process”.[34]However, the Commissioner also considered there to be a strong public interest in the Appellant maintaining the integrity of the procurement process. He concluded that it would not be in the public interest for contracting authorities and contractors to be discouraged from taking part in helpful pre-market engagement. He also noted that disclosure of risk information or financial information on the estimated costs of the works would affect both the pricing of bids and the bidders’ approach to risk transfer, which would act as a disadvantage to the Appellant and to the public purse during the negotiation process.[35]The Commissioner was therefore satisfied, notwithstanding the presumption in favour of disclosure, that the exception had been correctly applied to the OBC content that was not in the public domain, and that the public interest favoured maintaining the exception in relation to that content.[36]The Commissioner accordingly concluded as follows in the Decision Notice:
“The Commissioner decided that in the circumstances of this case the Council is entitled to rely on the exception at regulation 12(5)(e) to withhold the requested information which is not already in the public domain and the public interest favours maintaining the exception in that regard. However, with respect to that information already in the public domain the Commissioner requires the Council to take the following steps. Disclose the information contained in the Outline Business Case which is already in the public domain. The public authority must take these steps within 30 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court”
.

Grounds of appeal

[37]The Appellant lodged its appeal on 03 July 2025, asking for the decision of the Commissioner to be set aside.[38]The Appellant indicated that it now accepts that it was appropriate for the request to be treated as falling within the EIR. By way of background in its Grounds of Appeal, the Appellant indicated the following: “It is important to note that the Council never specified or discussed with the Commissioner what material in the OBC was understood to be in the public domain. Instead, the Council simply suggested that generally [italicised] it considers some of the material in the OBC to be in the public domain. It was not specific because of course it cannot be certain of which exact parts of the OBC – a document of almost 250 pages – are already in the public domain, particularly in light of the many and various stakeholders that are associated with the potential works to the bridge”.[39]The Appellant advanced two Grounds of Appeal. The first was that the Decision Notice was void for uncertainty. The Appellant submitted that section 50(4) of the FOIA, when read with regulation 18(4)(d) of the EIR, required the Decision Notice to specify the steps which must be taken by a public authority to comply with a requirement where the Commissioner had decided that the public authority had failed to communicate information as required by regulation 5(1) of the EIR.[40]The Appellant asserted that it was critically important that a Decision Notice is clear and unambiguous in the specific steps that it requires a public authority to take, not least because the failure to comply with a Decision Notice may ultimately result in the matter being treated by the High Court as a contempt of court. The Appellant stated that, for breach of an order to be established, it must be shown that the terms of the order were clear and unambiguous.[41]The Appellant stated the following: “The Council does not know what exactly within the OBC is in the public domain. To undertake detailed searches in relation to each line and paragraph of the OBC to check if specific information is in the public domain is a significantly onerous prospect and not one that the Council can have any hope of properly carrying out given the myriad realms of the public domain in which information may exist. In short terms, the DN lacks sufficient clarify [sic] and has not set out precisely what steps need to be taken. It is thus in breach of s50(4). Indeed, if the Commissioner himself has not ascertained exactly what parts of the OBC are in the public domain and what parts are not, it is difficult to see how he can expect to properly police compliance and be satisfied that the Council has discharged its duties under the DN. The DN leaves the Council in the invidious position of having to comply with a decision notice, with the penalty of contempt proceedings hanging over it if it gets it wrong, with no clarity at all as to what exactly in the OBC needs to be disclosed and what can be withheld”.[42]The Appellant asserted that, due to the uncertainty as to the steps to be taken, the Decision Notice was rendered void.[43]The second Ground of Appeal was that there had been a failure to treat the OBC as a whole. The Appellant submitted that the Commissioner’s approach that the parts of the OBC that were already in the public domain needed to be disclosed was unworkable “given the nature of the document and the lack of specific knowledge of both the Commissioner and the Council as to what exactly within the OBC is in the public domain. It is therefore exactly the type of case where information cannot be disclosed without unreasonable effort from the public authority and yet the Commissioner failed to consider or assess what the burden of identifying the public information and then redacting it would entail”.[44]The Appellant also submitted that it was inappropriate to disaggregate a confidential document when(i) it was important that the Appellant properly protect confidential information and not guess what may be in the public domain; and(ii) the DfT’s approach in respect of a similar request for information that it received was to treat the document as a whole.

The response of the Commissioner

[45]The Commissioner lodged his response on 22 August 2025, in which he maintained that the Decision Notice was correct and that the appeal should be dismissed.[46]The Commissioner’s response, in essence, was: i. The Decision Notice was not void due to uncertainty. It was the Appellant who, on two separate occasions (December 2024 and April 2025) asserted that parts of the OBC were already in the public domain. In order to make such statements, the Appellant must have had “a clear understanding of what information was publicly available at those times” and “Any reasonable person would expect the Appellant, as the originator of the material, to know what had been disclosed publicly.”; ii. It should be straightforward for the Appellant to identify which parts of the OBC are already public, given its reference to reports about the plans being available on their website; iii. In respect of the Grounds of Appeal, the Commissioner stated “…..Ground 1 is dismissed. Based on the Appellant’s own representations, it clearly knew what was in the public domain at the time the DN was issued, and complying with the DN would not be unduly burdensome. Consequently, Ground 2 also falls away”.[47]The Commissioner therefore concluded that, as the Appellant had advanced no argument of substance to challenge his findings, the appeal should be dismissed.

Case Management Directions

[48]Case Management Directions were given by Judge Roper on 03 December 2025. He indicated that it would be of assistance to the Tribunal, for the purposes of determining the appeal, to receive witness evidence from the Appellant in respect of its contention that it was not feasible to comply with the Decision Notice that is the subject of the appeal. Judge Roper therefore made a direction as follows:
“The Appellant must, by 19 December 2025, provide a witness statement (and separate submissions, if desired) in respect of the Appellant’s contention that it is not feasible to comply with the decision notice which is the subject of the appeal. Such witness statement (and submissions, if applicable) must, in particular: a. set out further details in support of its appeal as to why it considers that it is unable to realistically identify which information contained in the Outline Business Case….is already in the public domain, with reference (if possible) to relevant aspects of the Outline Business Case; and b. explain what specific aspects of the Outline Business Case it considers should be withheld from disclosure pursuant to regulation 12(5)(e) of the Environmental Information Regulations 2004; and c. if applicable, explain what specific aspects of the Outline Business Case it considers should be withheld from disclosure pursuant to any other exception in the Environmental Information Regulations 2004 (setting out what exception it relies in [sic] in respect of which aspect of the Outline Business Case]”
.

Witness statement on behalf of the Appellant

[49]The Appellant filed a witness statement from Glen Egan, Assistant Director of Legal Services for the Appellant, dated 19 December 2025, in response to the directions of Judge Roper.[50]The witness confirmed that the Appellant was not seeking to rely on any exception, other than regulation 12(5)(e) of the EIR, in relation to the OBC.[51]The witness stated that they not believe that they could offer their client, the Appellant, the necessary clear and unambiguous advice that it required regarding compliance with the Commissioner’s Decision Notice, for the following reason: “This is because by the Decision Notice, the Information Commissioner requires the Council to identify all information contained in the outline business case that is already in the public domain and to disclose it. My understanding is that the public domain comprises any material which any member of the public might be able to access regardless of how it might have been created or been disclosed to the public domain. This, of course, means that such information could be held in a wide variety of places, including across all forms of social media. The major concern that I have is that it is simply not possible for the Council to establish the full extent of “public domain” and even if it could do that, to carry out searches for exactly what in the Outline Business Case is also in the public domain”.[52]The witness went on to state that it would not be possible for the Appellant to establish the true extent of the public domain. In order for the witness to properly advise the Appellant, they would need to advise the Appellant to list each and every matter mentioned in the 244 pages of the OBC and to then search against each term from all possible sources of publicly available information, which would be an impossible task to determine how much information had actually been put into the public domain.[53]The witness considered whether they may have been able to advice the Appellant if the Commissioner had ordered the Appellant to identify matters which the Appellant itself had placed in the public domain. The witness stated that, in those circumstances, they may have been able to advise the Appellant to review all of its publications to identify each item from the OBC which the Appellant had chosen to publicise but maintained that this would be a difficult and time-consuming task. Such an order would, at least, have been one against which compliance could have been objectively judged.[54]The witness statement went on to say that “…when reference has been made [by the Appellant] in correspondence to the public domain, they have done so in the most general of terms because it is known that the subject of Hammersmith Bridge has generated a large but unknown amount of publicity. In particular, no log has ever been kept by the Council of references to Hammersmith Bridge that have come to the Council’s attention”.[55]The witness stated that they had considered whether it may be possible to release a partially redacted version of the OBC. However, they concluded that the OBC only makes sense if it is read as a whole, and that it would be disproportionate and unduly burdensome on the Appellant to have to conduct a sentence-by-sentence analysis of information that may fall outside of the scope of the exception. The witness also stated that “…a redacted document would be of no value or use to the public because it would bear no relation to the complete version of the Outline Business Case”.

Further submissions by the Commissioner

[56]The Commissioner filed additional brief submissions dated 09 January 2026, in which he reiterated that it was not unduly burdensome for the Appellant to identify which information contained within the OBC was in the public domain. It was the Appellant who had asserted that parts of the OBC were in the public domain and, to make such statements, it must have had a clear understanding as to what information was publicly available at those times. The Commissioner indicated that the relevant date to check whether information was in the public domain was 09 August 2024, which was the date of provision of the Appellant’s internal review outcome.[57]The Commissioner also stated that it would be possible for the withheld information to be partially disclosed, noting that partial disclosure is commonplace in the Tribunal and that any confusion caused by partial disclosure could be remedied by an explanation of the content to provide necessary context.

The Appellant’s reply to the Commissioner’s response

[58]No reply was filed by the Appellant to the Commissioner’s response or to his further submissions.

Legal Framework

[59]“Environmental information” is defined in regulation 2 of the EIR as follows: 2. Interpretation (1) In these Regulations – …… “environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on – (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organism, and the interaction among these elements; (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; (d) reports on the implementation of environmental legislation; (e) cost-benefit and other economic analysis and assumptions used within the framework of the measures and activities referred to in (c); and (f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).[60]The duty to make environmental information available on request is found in regulation 5 of the EIR as follows: 5. Duty to make available environmental information on request(1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of the Regulations, a public authority that holds environmental information shall make it available on request.(2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request. ……[61]The relevant parts of regulation 12, which outlines the exceptions to the duty to disclose environmental information, read as follows: 12. Exceptions to the duty to disclose environmental information(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 on 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) …..(4) …..(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 – ….. (e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. ……[62]In order to determine whether the exception in regulation 12(5)(e) of the EIR is engaged, regard should be had to the four-stage test as adopted by the Tribunal in Bristol City Council v Information Commissioner and Portland and Brunswick Squares Association (EA/2010/0012) which outlined that, in order to come within the exception, it must be shown that: i. The information is “commercial or industrial” in nature; ii. The information is subject to confidentiality provided by law; iii. Such confidentiality is provided to protect “a legitimate economic interest”; and iv. The disclosure of the information would adversely affect such confidentiality.[63]Pursuant to regulation 12(1)(b) of the EIR, a public authority can only withhold information where the exception applies if the public interest in maintaining that exception outweighs the public interest in disclosing the information.[64]As noted in the Commissioner’s guidance, the public interest in maintaining the exception in regulation 12(5)(e) lies in maintaining commercial confidences. Conversely, the guidance notes that there will always be some public interest in disclosure to promote transparency and accountability of public authorities, greater public awareness and understanding of environmental matters, a free exchange of views, and more effective public participation in environmental decision making. The weight to be attached to each of these interests will evidently vary from case to case.[65]The correct approach is for the public interest in disclosing the information and the public interest in maintaining the exception to be identified, and for a balancing exercise to then be carried out. If the public interest in disclosing is stronger than the public interest in maintaining the exceptio, then the information should be disclosed.

The role of the Tribunal

[66]By virtue of regulation 18 of the EIR, the Tribunal’s remit is governed by section 58 of FOIA. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved an exercise of his discretion, whether he ought to have exercised it differently. The Tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

Issues

[67]Both parties now accept that the Commissioner was correct to consider this request under the EIR and we have therefore not addressed this matter further.[68]Understandably, the Appellant also does not appeal against the Commissioner’s decision that the Appellant was entitled to rely on regulation 12(5)(e) of the EIR or that the public interest balance favoured maintaining that exception in relation to material which was not in the public domain at the relevant date.[69]The Appellant submits that the Decision Notice is void for uncertainty, in that it is unclear in relation to the specific steps that the Commissioner requires the Appellant to take in order to comply with it. The Appellant has not submitted that, if the information that were in the public domain were capable of being clearly identified, the Commissioner came to the incorrect decision in determining such information could not be withheld under the exception in regulation 12(5)(e) of the EIR. We have therefore focused our deliberations on whether the Decision Notice is sufficiently clear and unambiguous in terms of the steps that the Appellant must take to comply with it.

Evidence

[70]We read and took account of an open bundle containing 156 pages including indexes and a redacted version of the Appellant’s witness statement.[71]We read and took account of a closed bundle containing 260 pages, comprising of the withheld material, namely the OBC, and an unredacted version of the Appellant’s witness statement.

Discussion

[72]It does not appear to be disputed between the parties that the concept of information that is ‘in the public domain’ refers, in broad terms, to information in any format which any member of the public is able to access freely, irrespective of how or by whom the information has been created or how it has been disclosed into the public domain. We agree with the Appellant’s witness evidence that, consequently, such information could be held in a wide variety of places, including on the internet, in printed form, or across social media.[73]It also appears to be accepted by the parties that no effort was made, either in the Appellant’s response to the initial information request or during the Commissioner’s investigation of the requester’s complaint, to specifically identify what material or information was in the public domain at the relevant date (that being the date of the Appellant’s internal review decision).[74]Whilst we recognise that it was the Appellant who, on two occasions, indicated that some information was in the public domain, we accept the Appellant’s submissions, as articulated in its witness statement, that it is not possible for the Appellant to state with certainty what specific information that is contained in the OBC is also in the public domain. There is clearly a significant level of public interest in the project, and it is therefore inevitable that there will be information about it in the public domain in different places and across a range of formats.[75]We therefore conclude that the Decision Notice does not outline the steps that need to be taken by the Appellant with sufficient specificity or clarity to enable the Appellant to comply with it. We also agree with the Appellant’s submission that, as the Decision Notice is written, it would be impossible to monitor compliance it given that the Commissioner himself is not aware of what specific information contained in the OBC is in the public domain. We therefore agree that the Decision Notice with is void for uncertainty.[76]The Appellant does not challenge the Commissioner’s decision that information contained in the OBC which is in the public domain is not exempt from disclosure under regulation 12(5)(e) of the EIR. The Appellant’s witness recognises in their witness statement that, had the Commissioner required the Appellant to identify and disclose information which the Appellant itself had placed in the public domain, then the Appellant could be advised of the steps that it needed to take to comply. Whilst the witness states that this would have been a difficult and time-consuming task, they recognise that it would set a standard against which compliance could be objectively judged. The witness does not suggest that it would not be possible for the Appellant to carry out this exercise or that it would be equally void for uncertainty..[77]We do not accept the Appellant’s contention that it is not possible to redact from the OBC any content which the Appellant has not published. The Appellant’s duty under the EIR is to make available environmental information, not documents. It is not uncommon for exempt information to be redacted from a document and for the information contained in the redacted document to be provided in response to a information request. Any potential confusion arising from the reading of information in a redacted document can be mitigated by an accompanying explanation of the unredacted material if required.

Conclusion

[78]We therefore conclude that the Decision Notice issued by the Commissioner and dated 05 June 2025 is not in accordance with the law and make a Substituted Decision Notice as outlined above. Signed: Tribunal Judge Shenaz Muzaffer Date: 13 July 2026