Merthyr Tydfil County Borough Council v The Information Commissioner & Anor [2026] UKFTT 1091 (GRC)

[2026] UKFTT 01091 (GRC)

Case Reference: FT/EA/2025/0396

First-tier Tribunal

(General Regulatory Chamber)

Hearing Heard on: 19 June 2026

Date 24 July 2026

Information Rights

Before

JUDGE A. MARKS CBE

MEMBER J. MURPHY

MEMBER P. TAYLOR

Between

MERTHYR TYDFIL COUNTY BOROUGH COUNCILAppellant

THE INFORMATION COMMISSIONERRespondent

CHRIS AUSTIN Second Respondent

John Fitzsimons, Counsel for Appellant

for First Respondent: Sapna Arora, Solicitor

for Second Respondent: Toby Fisher, Counsel and Peter Lockley, Counsel

Decision: The appeal is allowed because of an error of law not pleaded by the Appellant and dismissed to the extent that the Appellant challenged the Commissioner's exercise of discretion.

REASONS

Introduction

[1]This is an appeal by Merthyr Tydfil County Borough Council ("the Council") against a Decision Notice reference IC‑366768‑D1Z1 issued by the Information Commissioner ("the Commissioner") dated 23 September 2025.

[2]The Decision Notice concluded that regulation 12(5)(e) of the Environmental Information Regulations 2004 ("EIR") was engaged but the public interest in maintaining the exception was outweighed by the public interest in disclosing the information.

[3]The Commissioner therefore required the Council to disclose the requested information.

Background

[4]The land reclamation scheme for Ffos‑y‑fran ("the site") forms part of a wider programme intended to restore the derelict site through mineral extraction followed by restoration. Planning permission for the site was granted by the Council in April 2005. This provided for extraction of coal by opencast methods until no later than September 2022 with the aim of generating funds for restoration of the site to beneficial long-term use by no later than December 2024, supported by financial security arrangements.

[5]Originally, the developer's restoration obligations were secured by a parent company deed of guarantee in favour of the Council. In 2015 this guarantee was replaced by an escrow agreement dated 21 December 2015 ("2015 Agreement") between the Council (in its corporate capacity rather than as planning authority), Miller Argent (South Wales) Limited ("the Developer") and HSBC Bank PLC.

[6]The 2015 Agreement provided for funds of £15 million to be paid by the Developer into an escrow account in regular amounts over a specified period with the aim of creating a pot of money available to the Council to be used towards restoring the site should the Developer fail to do so. The Developer failed to pay into the escrow account until its obligations to do so under the 2015 Agreement were enforced by the Council bringing proceedings in the High Court, which the Developer unsuccessfully appealed to the Court of Appeal.

[7]On 22 July 2024, the 2015 Agreement was varied ("the 2024 Agreement") to amend the arrangements for the holding and release of monies connected with restoration works. By then, the Developer had changed its name to Merthyr (South Wales) Limited.

The request for information, internal review and responses

[8]On 7 November 2024, the Second Respondent ("CA") emailed the Council as follows:

"Under the Freedom of Information Act 2000, could you please supply me with the following information. The full and latest (2024) copy of the financial security/sureties Agreement/s (Deed of Guarantee?) between Merthyr Tydfil County Borough Council (MTCBC) and the mining company operating the Ffos-y-fran opencast coalmine, Merthyr (South Wales) Limited; a subsidiary of Gwent Investments Limited, and the further 'parent' company Merthyr Holdings Limited. (Of course, as the legal Agreement has been changed then whomsoever is now stated as the other party in this Agreement). This would be the Agreement for the £15 Million sureties money held in an escrow account, and the parent guarantee for £15 Million sureties monies. We were informed that the legal agreement/s had been changed/varied/renegotiated earlier this year (2024). Also, could you please supply me with the immediately previous version of this legal agreement."

[9]On 26 November 2024, the Council responded, applying EIR 12(5)(e) (commercial or industrial confidentiality) to withhold the requested information.

[10]Following an internal review requested by CA on 27 November 2024, the Council notified CA on 5 February 2025 that its review upheld its original response.

The Commissioner’s investigation and Decision Notice

[11]On 14 February 2025, CA complained to the Commissioner about the Council's handling of his request for information. He objected to the Council dealing with his request under EIR rather than the Freedom of Information Act 2000 ("FOIA"). He also complained that the information he had requested had not been provided.

[12]The Commissioner determined that the scope of the case was to determine if the Council was correct to handle the request under EIR and, if so, to withhold the information under EIR 12(5)(e).

[13]Having conducted his investigation, including raising questions of both the Council and CA, on 23 September 2025, the Commissioner issued the above-mentioned Decision Notice ("DN").

Appeal to the Tribunal

[14]Under cover of an email dated 20 October 2025, the Council sent its Notice of Appeal dated 17 October 2025 to the Tribunal, challenging the DN. On 23 October 2025, the Tribunal notified the Council its email attachments were inaccessible. The Council re-sent its email on 27 October 2025 but inadvertently omitted the DN, correcting the error on 6 November 2025.

[15]The grounds of appeal challenge the approach the Commissioner took to the public interest balancing test:(a) Ground 1 - the Commissioner failed to consider and/or properly grapple with the public interest factors against disclosure namely: i. potential undermining of future public/private partnerships; ii. failure to understand the commercial sensitivity of the 2015 Agreement and 2024 Agreement, hence failure to properly assess the impact on legitimate economic interests caused by disclosure; and iii. legal risk to the Council and knock-on public interest impact on taxpayers.

(b) Ground 2 - the Commissioner overstated and misunderstood the public interest factors in favour of disclosure because: i. the £15M in the escrow account is already in the public domain and little public benefit in enhancing understanding of restoration work at the site would be achieved by full disclosure of complex financial details; and ii. the Senedd's 2024 Report entitled 'Restoration of opencast mine sites' already provides a detailed overview of the financial and environmental context of the site thus satisfying much of the public interest in transparency.

[16]The Council seeks an appropriate substituted decision notice.

The Law

[17]Although initially challenged by CA, it is no longer disputed that EIR, rather than FOIA, is the applicable statutory regime in this case

Duty to make available environmental information on request – subject to exceptions

[18]EIR 5 requires public authorities that hold environmental information to make it available on request as soon as possible and no later than 20 working days after receipt of the request.

[19]EIR 12(1) provides that public authorities may refuse to disclose environmental information requested if an exception applies and if:

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

[20]EIR 12(2) states that public authorities shall apply a presumption in favour of disclosure but subsequent paragraphs of EIR 12 provide various exceptions. The exception relevant to this case is: (5) …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 public interest...

[21]As the Commissioner's guidance explains, for EIR 12(5)(e) to be engaged, there are four questions to consider Bristol City Council v IC and Portland & Brunswick Squares Association (EA/2010/0012) :(a) is the information commercial or industrial in nature?

(b) is the information subject to confidentiality provided by law?

(c) is confidentiality required to protect a legitimate economic interest in respect of that information i.e. more likely than not, disclosure would cause some harm to an economic interest Elmbridge Borough Council v. IC and Gladedale Group Ltd. (EA/2010/0106) ; and

(d) would disclosing the information adversely affect that confidentiality?

[22]If the answer to all the above questions is "yes", the final question is whether, in accordance with EIR 12(1)(b) the public interest in maintaining the exception outweighs the public interest in disclosure.

Sections 57 and 58 FOIA: The role of the Tribunal

[23]Section 57 FOIA entitles either the requester or the relevant public authority to appeal to this Tribunal against the Commissioner’s decision notice.

[24]Under section 58 FOIA, if the Tribunal considers that the decision notice was either wrong in law or, to the extent that the notice involved an exercise of discretion by the Commissioner he ought to have exercised it differently, the Tribunal shall either allow the appeal (or substitute the decision notice) or dismiss the appeal.

[25]The Tribunal can also review any finding of fact on which the decision notice was based.

Evidence

[26]Prior to the hearing the parties had submitted written evidence and submissions. These were set out in an Amended Open Bundle of 596 pages (including indices). The Tribunal was further provided with an Amended Closed Bundle of material.

[27]Although the Council had previously withheld the 2015 Agreement (and included a copy of it only in the Closed Bundle), by the date of the hearing a copy of that document was included in the Amended Open Bundle.

[28]At the hearing, oral evidence on behalf of the Council was given by two witnesses: David Cross, a qualified Town Planner and the Council's Development Control Group Leader; and Geraint Morgan, a solicitor and Head of Legal Services at the Council. After their evidence in chief, those witnesses were cross-examined by CA's Counsel and were asked questions by the panel.

[29]During the hearing, due to evidence given by Mr Cross and Mr Morgan, the Council disclosed additional information, namely the 2024 Agreement apart from Schedule 2 thereto which contained detailed financial information as Schedule 4A to the 2015 Agreement.

[30]The Amended Open Bundle included a witness statement from CA on which he was not cross-examined so his evidence was accepted unchallenged.

[31]The remaining closed material was discussed in a closed session of the oral hearing in accordance with the GRC Rule 14(6) and the Tribunal’s Practice Direction on Closed Material.

[32]For the benefit of CA – and to minimise the inevitable disadvantage to him of not seeing the closed material withheld from him - following the closed session of the hearing, in open session the Council provided CA with a "gist" as follows:(a) The financial information was provided by the Council in a Closed Bundle and the panel explored it, recognising that the information was live at the time of the request being dealt with.

(b) The panel asked questions to understand whether the EIR exception was properly engaged, including in relation to the economic interests of the developer.

(c) The panel then explored the public interest in relation to the financial information, in particular considering whether there could be harm to economic interests in the event of disclosure, while also noting the need for transparency and the emphasis in the EIR on a presumption in favour of disclosure.

(d) Finally, the panel explored whether, if some financial information needed to be redacted, headline or total figures could be disclosed in the interests of transparency and in light of the requester’s evidence on the need for transparency in how monies are being spent. Submissions Summary of submissions on behalf of the Commissioner (the First Respondent)

Submissions

[33]The Commissioner neither attended nor was represented at the hearing but had submitted written submissions in advance.

[34]His submissions, to the extent relevant to the much-reduced scope of the information still being withheld by the Council, were in summary:(a) the Commissioner relies on the DN and his response to CA's grounds of appeal dated 19 December 2025;

(b) having reviewed the Closed Bundle, it does not contain a large amount of commercially sensitive material;

(c) in his witness statement, Mr Morgan relied on an email dated 9 October 2025 from the Developer as evidence that the Developer would not have entered into the agreement had it known that the information might be disclosed. However, that email does not explain how disclosure would result in harm to any economic interests;

(d) even if the harm of disclosure had been explained, the Council's statutory obligations under EIR cannot be excluded or overridden by agreement;

(e) Mr Cross' witness statement emphasises the risk of the Developer disengaging from or withdrawing from the site. However, the 2015 Agreement and the 2024 Agreement are designed to reduce that risk, and provide the Council with protection in the event of any default by the Developer.

Summary of submissions on behalf of the Second Respondent (CA)

[35]Submissions by and on behalf of CA re in summary:(a) the site overlooks Merthyr Tydfil with three unsightly overburdens (spoil heaps) dominating the town and a deep void of around 175 metres containing contaminated water. This poses environmental as well as public health and safety concerns for residents and beyond;

(b) for over a decade, including 14 months when coal was extracted without planning permission to do so, the Developer significantly profited from its operations at the site;

(c) the whole purpose of the opencast coaling permission was to generate funds for restoration of the site, so it is ignominious for the Developer now to claim lack of financial resources to do so in accordance with the approved restoration scheme;

(d) the Developer has applied for consent to deliver a revised restoration scheme ("section 73 application") which CA considers inferior because it will leave a deep void filled with toxic leachate rather than urban common and upland grazing as originally approved;

(e) an independent assessment by consultants in April 2025 concluded that the revised scheme may not address the stability of the tips and slopes, with ongoing risks to the residents and potential financial burden to the Council;

(f) the section 73 application was called in by the Welsh Government on 2 April 2026 so that Ministers, rather than the Council, will determine the application: an outcome is awaited;

(g) pending determination of the Developer's section 73 application, the Developer has drawn down funds from the escrow account to carry out works consistent with the (unapproved) revised restoration scheme. Moreover, the monies in that account were never intended to comprise a restoration fund, but rather a fall-back should the Developer not perform its obligations;

(h) in these circumstances, there is clear public interest in release of the withheld information to enable public scrutiny and democratic accountability for the release of funds for such a scheme: transparency is essential to community involvement and crucial to EIR in environmental matters;

(i) the Council has not enforced the Developer's obligation to use its own funds to restore the site and instead seems to be relying on the Developer's "cooperation";

(j) the grounds of appeal do not disclose any error of law or wrongful exercise of discretion in the DN: i. there is little to no risk that disclosure of the withheld material would deter other developers because local authorities can impose conditions as part of the planning system. Moreover, there are strong commercial incentives which motivate developers to accept such conditions. After 20 years of FOIA and EIR, all sophisticated developers will be aware that the strong commercial incentives of development bring the risk of disclosure of even "confidential" information; ii. claims about the "sensitivity" of the withheld information are implausible: the Developer's previous actions provide a strong incentive to avoid scrutiny of its dealings with the Council. Claims of damage to the Developer's "competitive position" - and claims that disclosure would interfere with ongoing obligations in the escrow agreement - are incomprehensible; iii. the risk of legal challenge to the Council is not an economic interest protected by the law of confidentiality; iv. the claim that little would be learned from disclosure is misplaced: there is significant value in holding the Council to account by scrutinising its arrangements with the Developer. There is strong public interest in knowing whether the Council allowed the Developer to use up escrow funds or deliver an inferior unapproved restoration scheme; v. the Senedd Report provides only an overview and cannot inform the public about events after its publication, six months before the request in this case. However, that report does find "epic mismanagement" of the site which reinforces the need for more and better public involvement as well as improved transparency in the planning process; and vi. disclosure would address the transparency deficit when the Council is apparently allowing the Developer to draw down escrow funds to advance an unapproved restoration plan.

(k) during the appeal, the Council has largely abandoned its position by disclosing both the 2015 Agreement and the 2024 Agreement. It is not conceded that EIR 12(5)(e) is engaged: that is a matter for the panel to decide;

(l) even if the exception is engaged, there is a significant public interest in disclosure of the remaining withheld information - namely the detailed costings for the interim works - to enable the requester to establish whether escrow funds have been spent on peripheral rather than fundamental restoration works: that public interest far outweighs any concerns about commercial confidentiality;

(m) little weight should be given to any claimed prejudice to negotiations with sub-contractors because the costings already reflect those: the reason for withholding the information is apparently that disclosure would displease the Developer but this fails to appreciate the countervailing public interest of residents and beyond;

(n) the public interest in transparency is increased, and public interest in the protection of confidentiality reduced, by the Developer's non-compliance with other of its legal obligations such as continued coaling beyond the permission expiry date; ignoring the Council's Enforcement Notice; failing to pay into the escrow account until forced to do so by court orders; and failing to submit details for full restoration works under the approved restoration strategy.

Summary of submissions on behalf of the Council (the Appellant)

[36]The Council submits in summary that:(a) the Commissioner correctly concluded that the EIR 12(5)(e) exception was engaged because each part of the four-stage test (set out in paragraph 21 above) was met;

(b) however, the Council has since reviewed the 2024 Agreement and accepts that its contractual terms do not - as previously stated to and accepted by the Commissioner - prohibit disclosure without mutual consent;

(c) this error does not impact on the engagement of EIR 12(5)(e), however, because both the Council and the Commissioner relied on common law principles of commercial confidence;

(d) the financial costings in the 2024 Agreement could undermine the Developer's negotiations with sub-contractors for the restoration works;

(e) it is reasonable for the Council to claim that these costings are commercially sensitive and it is therefore entitled to rely on EIR 12(5)(e) to protect legitimate economic interests: at the very least, if disclosure is ordered, the most sensitive elements of the costings should be redacted as there is little public interest in that detail;

(f) as summarised in paragraph 15 above, the Council challenges the Commissioner's consideration of public interest factors. In particular: i. the risk that disclosure of the 2024 Agreement will have on the Council's ongoing relationship with the Developer given the latter's concerns about the openness and sharing of information, especially the likelihood of increased public scrutiny and criticism; ii. this in turn might affect the Developer's willingness to engage in continued progressive restoration works where reduction or cessation of activity for a prolonged period would likely increase safety risks around the stability of the land; iii. there is therefore a strong public interest in withholding the information to ensure the important restoration works continue; iv. the Developer has explicitly stated that information on costings in the 2024 Agreement is "highly confidential"; that disclosure will have "serious ramifications" for the Developer's ability to share such information with the Council and "a significant retrograde step" in the establishment of "trust and openness in this matter"; and the public interest argument should not be used "as a catch all to override the parties' (especially the [Developer's]) legitimate expectations of confidentiality when entering into a commercial contract"; v. the Commissioner failed properly to consider the detailed costings disclosed by the Developer as part of the 2024 Agreement as part of the public interest test, even though the Commissioner acknowledged that the agreement was live and in force in the context of assessing the legitimate economic interest; vi. the Commissioner did not explain whether he considered the real, rather than speculative, risk of litigation as the Developer does not consent to disclosure, and previous litigation between the Council and the Developer grounds the risk in precedent. The Commissioner should therefore have taken account of the financial and reputational impact of further litigation, and the public interest in protecting taxpayer money, although Mr Morgan in his evidence accepted that this factor would attract only limited weight in the public interest balancing test; vii. the Commissioner overstated and misunderstood the public interest factors in disclosure of the 2024 Agreement, especially in respect of transparency, as the scope of the work for the site's restoration is not covered by that agreement nor does it reveal measures concerning restoration, only how and when monies can be drawn down for restoration. However, transparency is important to the Council so the Phase 2a and 2b works approved as part of the interim works are posted on the Council's planning portal;

(g) in short, the Commissioner erred in carrying out the public interest test which, had proper regard been given to the relevant factors, would have weighed against disclosure. Discussion and decision Preliminary issues

Discussion and decision

[37]The panel first considered the Council's late application to appeal (44 days after the date of the DN rather than 28 days). As the Council's initial application was submitted in time, and the omission of the DN from its resubmission was inadvertent, in the absence of any clear prejudice to the Respondents, the panel granted an extension of time.

[38]The panel then noted the recent appeal to the Court of Appeal of the Upper Tribunal decision in O'Hanlon O'Hanlon v IC and the HSE

[2025] UKUT 66 (AAC)

which decided that the correct time for considering both the engagement of an exception and the public interest test was the conclusion of the internal review. In the present case, however, the panel considered that it made no material difference to its decision whether the correct time was the conclusion of the internal review or the date the request was received.

The facts

[39]The panel then considered the relevant facts of this case. Based on the open evidence the panel has seen and heard, the panel has made the following findings of fact based on "the balance of probabilities" (that is, what is more likely than not):(a) despite the Council's original assertion that the requested agreements contain confidentiality provisions - which the Commissioner accepted in the DN - this is now conceded by the Council to be incorrect: instead the Council relies on common law principles of commercial confidence.

(b) in later asserting that the commercial contract was entered into in confidence, the Developer gave no reason for regarding the information it provided as "highly confidential" other than to assert that the company would never have consented to include in the agreement information on costings etc. which it did only "for completeness and to provide the Council with transparency."

(c) while the Developer strongly objects to disclosure and asserts "damage to, and overriding of, the significant general principles" of the ability to contract in confidence, it did not offer any evidence that its legitimate economic interests would be harmed by disclosure.

(d) the Developer has been the beneficiary of funds from the escrow account as the result of the 2024 Agreement varying the 2015 Agreement. That variation enabled escrow funds to be used for interim restoration funds rather than the entire restoration works being wholly funded by the Developer out of its own resources while the escrow fund was to secure performance of those obligations.

(e) since the DN, most of the information requested has now been provided by the Council in response to CA's request: consequently, the scope of the appeal has narrowed to comprise only the costings provided by the Developer in Schedule 2.

(f) the 2015 Agreement did not require costings for the restoration works to be provided but the 2024 Agreement includes costings for each phase of the interim works and for subsequent site inspection before funds are released.

(g) the 2024 Agreement reveals that the cost of the interim works is just under £2.4 million.

(h) the overarching strategy for the restoration works, including the overburden mounds being used to infill the voids, was approved as part of the original planning consent. However, the final strategy is not yet agreed because the Developer has not provided full details, including those for final void restoration, only those for the interim works.

(i) a substantial part of the cost of restoring the site, estimated to be closer in total to £50 million rather than the £15 million in the escrow account, comprises reprofiling of the overburden and filling the void for which the Developer says it does not have the funds. Error of law or wrongful exercise of discretionin balancing the public interest Is there an error of law in the Commissioner’s Decision Notice?

Error of law or wrongful exercise of discretionin balancing the public interest

[40]Having made the above findings of fact, the remaining issues for the panel in this case are(a) whether the Commissioner made any error of law in his decision and

(b) whether the Commissioner ought to have exercised his discretion differently.

[41]The first issue is whether the Commissioner erred in law in finding that EIR 12(5)(e) is engaged.

[42]Having carefully considered all the evidence and the parties' submissions (including the materials in the Closed Bundle which the panel has been able to assess for itself), the panel considered each of the elements required for engagement of EIR 12(5)(e) as follows:

Is the information commercial or industrial in nature?

[43]The panel had no difficulty in concluding that the remaining withheld information, comprising detailed costings of interim restoration works at the site, is commercial in nature.

Is the information subject to confidentiality provided by law?

[44]Despite the Commissioner's reliance on the Council's admittedly erroneous assertion that the 2015 Agreement and 2024 Agreement imposed a duty of confidence on all parties, the panel accepts the Commissioner's conclusion that the remaining withheld information had the necessary quality of confidence because it is neither trivial nor in the public domain.

[45]The panel is, however, doubtful that the information was shared in circumstances creating an obligation of confidence because:(a) there is no express indication of confidentiality in either the 2015 Agreement nor the 2024 Agreement, nor on the costings schedule itself nor in any surrounding correspondence nor in any other evidence provided to the Commissioner; and

(b) both Agreements were made in the context of long-planned remedial works to the environment with very serious implications for the surrounding area and its residents to which EIR would clearly be applicable were any information requests to be raised.

[46]While there is no evidence in this case that the Council informed the Developer that, as a public authority, it is subject to disclosure obligations under EIR, an entity operating an opencast mining operation on this scale for over a decade generating tens of millions of pounds, could be expected to be well-versed in planning and environmental matters and would - or ought to - have been aware of the Council's legal duties under EIR. Is confidentiality required to protect a legitimate economic interest in respect of that information i.e. more likely than not, disclosure would cause some harm to an economic interest?

[47]The Commissioner's basis for answering this question affirmatively was that "disclosure of the terms of the agreement would reveal the Developer's financial risk management and compliance strategy; potentially exposing sensitive commercial arrangements which could harm the Developer's economic interests."

[48]Given that the whole of the 2015 Agreement has been disclosed since the DN, as has all but Schedule 2 of the 2024 Agreement, this reasoning is greatly weakened.

[49]That the Commissioner recognised the costings in Schedule 2 are potentially commercially sensitive and that the agreement is "live and in force" as an additional element are, in the panel's view, the only possible features which apply to the remaining withheld information.

[50]However, the Developer has identified no specific "legitimate economic interest" which would be harmed by disclosure, and the Council has offered - based on no such submissions by the Developer itself - only that the Developer's negotiations with sub-contractors for the restoration works might be undermined.

[51]In the context of a company which claims not to have the funds to comply in full with its obligations to restore the site and, as is in the public domain on the Companies House website, was subject to petitions for compulsory strike off in March 2022 and May 2024 (i.e. before the request), it is difficult to see what genuine economic interests could additionally be harmed by disclosure of the costings information in the 2024 Agreement.

[52]The Council also relied on a broader contention that disclosure would deter future developers and other public/private partnerships from engaging with local authorities. The panel places little weight on that submission. Such arrangements are routinely entered into against the backdrop of statutory disclosure obligations under FOIA and EIR, and no convincing evidence was produced that disclosure of the limited information remaining in issue would materially affect future commercial engagement.

[53]Moreover, neither the Developer nor the Council has provided any sufficiently compelling evidence for the panel to find, on the balance of probabilities, that any harm would be caused to these interests by disclosure. While the 2024 Agreement was "live" at the time of the request, the works contemplated by that agreement were already defined in the Schedule and costed, so the sub-contractor argument is weak.

[54]Despite the precedent of previous disputes between the Council and the Developer, the panel considers the risk of legal proceedings for alleged breach of confidence low given the Developer would have to demonstrate damage caused by the disclosure yet no evidence of such potential damage has been provided.

[55]In short, the panel does not accept that the Developer or the Council have proved, on the balance of probabilities, that harm would be caused to their claimed legitimate economic interests should the withheld information be disclosed.

Would disclosing the information adversely affect that confidentiality?

[56]The panel accepts the Commissioner's conclusion that if the first three elements of the test are established, it is inevitable that this element too will be satisfied. In this case, however, the panel doubts that the withheld information is subject to confidentiality provided by law, and rejects the Commissioner's finding that disclosure would cause harm to legitimate economic interests.

[57]In all the circumstances, the panel therefore considers that neither the Council nor the Commissioner has demonstrated that, at the time of responding to CA's request for information, disclosure would adversely affect the claimed confidentiality.

[58]As the panel finds the criteria for engagement of the EIR 12(5)(e) exception are not met, the panel concludes that the Commissioner made an error of law in finding the exception engaged in this case.

Public interest balance

[59]Even if the exception in EIR 12(5)(e) does apply, the panel considers the public interest factors against disclosure in this case are weak because:(a) the presumption of disclosure under EIR 12(2) creates a high threshold to justify non-disclosure yet in this case there is no detailed reasoning or evidence, rather assertion of general factors;

(b) for reasons already given, the panel gives little weight to arguments that disclosure would discourage future commercial engagement with public authorities;

(c) the panel notes that the Developer made no contemporaneous claim of confidentiality at the time the information was supplied; and

(d) no evidence was provided that legitimate economic interests would be harmed, only assertions of potential for such to which the panel gives little weight

[60]By contrast, the factors in favour of disclosure are very strong, namely:(a) the highly profitable opencast mining operation was permitted at the site for over a decade for the very purpose of generating funds to enable the operator to carry out extensive restoration of the site thereafter, yet the profits have been taken while the restoration obligations are largely in default;

(b) increased accountability and public confidence in the integrity of decision-making in an area of crucial importance to the public - and the residents of Merthyr Tydfil in particular - namely the carrying out and funding of restoration works to a large site exploited for mineral extraction by the Developer and others, which has blighted the town of Merthyr Tydfil for nearly two decades;

(c) allowing the public to see whether or not the local authority to whom local residents pay taxes have competently managed the hitherto private financial arrangements it entered into for limited restoration works at the site;

(d) allowing the public to see whether monies held in an escrow account designed to secure the performance of and incentivise the Developer to carry out and complete its obligations to fulfil the long-standing approved restoration strategy have been reasonably and well-spent on interim works; and

(e) enabling the public to understand and assess whether the acknowledged environmental, health and safety risks of the site have been properly scoped and addressed by the interim works.

Conclusion

[61]For the reasons set out above, the panel finds that the Commissioner’s DN was wrong in law in concluding that the exception in EIR 12(5)(e) was engaged.

[62]Even if that exception was engaged, the panel considers that the public interest arguments in favour of disclosure overwhelmingly outweigh the public interest in maintaining the exception.

[63]The appeal is allowed because of an error of law not pleaded by the Appellant but identified by panel; and the appeal is dismissed to the extent that the Appellant challenged the Commissioner's exercise of discretion in his weighing of the public interest balance.

[64]As the overall outcome for the Council as Appellant is no different from the DN, the Tribunal does not substitute the DN but instead reaffirms the requirement for the Council to disclose the requested information.

[65]Accordingly, the Council must, by no later than 4pm on the date 35 working days after promulgation of this decision (or, if later, until the outcome of any appeal of this decision), provide to the Second Respondent, CA, the entire Closed Bundle of material previously provided to the Tribunal under GRC Rule 14 with the redaction only of the names and other personal details of individuals.