Frank Boland v The Information Commissioner
[2024] UKFTT 42 (GRC)
The Secretary of State For Energy Security and Net Zero v The Information Commissioner
26 April 2024
[2024] UKFTT 184 (GRC)
First-tier Tribunal
Someone wanted government documents about a cancelled plan to build a nuclear power plant. The government said no, but a judge said some of the documents should be released because the public has a right to know how decisions are made, even if the project is cancelled. The judge considered the need for transparency versus protecting confidential information.
Key Facts
- •Appeal concerning the Information Commissioner's decision on a request for information related to a withdrawn application to build a nuclear power station at Wylfa, Anglesey.
- •Applicant: Mr. Jas Chanay requested information from BEIS (now Department for Energy Security and Net Zero) regarding the Wylfa Newydd project.
- •BEIS withheld information citing regulations 12(4)(e) (internal communications) and 12(4)(d) (material in the course of completion) of the Environmental Information Regulations 2004.
- •Information Commissioner ruled in favor of disclosure.
- •Secretary of State appealed, arguing for exceptions under regulations 12(5)(b) (course of justice) and 12(5)(d) (confidentiality of proceedings).
- •The withdrawn application was for a nationally significant infrastructure project with significant environmental and societal implications.
Legal Principles
Environmental Information Regulations 2004 (EIR) exceptions for internal communications and material in the course of completion.
Environmental Information Regulations 2004
EIR exceptions for course of justice and confidentiality of proceedings.
Environmental Information Regulations 2004
Aarhus Convention principles on access to environmental information, including the balancing of public interest in disclosure against potential harm.
Aarhus Convention
Interpretation of EU Directives and their transposition into UK law; necessity for legal certainty.
CJEU C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany
Public interest balancing test under EIR, considering various factors including the overall concept of public interest in disclosure.
CJEU C-71/10 - Office of Communications v Information Commissioner (Ofcom)
Common law duty of confidence.
Coco v AN Clark (Engineers) Ltd [1968] FSR 415
Outcomes
Appeal allowed in part.
The Tribunal found that the confidentiality of proceedings exception (reg 12(5)(d)) did not apply. However, parts of the information were covered by the course of justice exception (reg 12(5)(b)), and the Tribunal ordered disclosure of the remaining information, balancing the public interest in transparency against the potential harm identified by the Appellant.
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