Tribunal Upholds Decision to Redact Information in Salter v The Information Commissioner Case, Emphasizing Balancing of Public and Commercial Interests under EIR

Introduction

In the First-tier Tribunal case of Gary Salter v The Information Commissioner, several pivotal legal principles were scrutinized concerning a request for information under the Environmental Information Regulations 2004 (EIR). The appellant, Gary Salter, contested the decision of the Barnsley Metropolitan Council to redact certain information in response to his request, which was upheld by the Information Commissioner’s decision notice. The core legal discussions revolved around the application of the EIR, the engagement of the regulation 12(5)(e) exception for commercial confidentiality, and the balance of the public interest in maintaining confidentiality against the interest in disclosing the information.

Key Facts

Salter’s initial request sought details of funding and development agreements relating to a link road project. The Council provided redacted agreements citing commercial confidentiality under EIR 12(5)(e). Salter challenged the redactions, resulting in additional but still redacted information being released. Further exchanges and an internal review by the Council led to disclosure of less-redacted documents, which did not satisfy Salter. After a prolonged process, including a Freedom of Information Act (FOIA) request made by Salter to the Information Commissioner, the matter proceeded to the Tribunal.

Legal Principles

Environmental Information Regulations 2004

The EIR governs access to environmental information held by public authorities, with a presumption in favor of disclosure. Regulation 12(5)(e) provides an exception for the confidentiality of commercial or industrial information if it meets a certain four-part test. The test examines whether information is of a commercial nature, if confidentiality is protected by law, whether it serves to protect a legitimate economic interest, and if that confidentiality would be adversely affected by disclosure.

Exception under Regulation 12(5)(e)

In this case, it was not in dispute that the information fell within the scope of EIR. The Tribunal affirmed the Commissioner’s application of the four-part test in Bristol City Council v Information Commissioner, agreeing that EIR 12(5)(e) was engaged. Crucially, the Tribunal found that the confidentiality provisions within the development agreement provided by law, were designed to protect legitimate economic interests, and that disclosure could adversely affect those interests.

Public Interest Test

Even when an EIR exception is engaged, there is a duty to disclose if the public interest in doing so outweighs the interest in maintaining the exception. Here, the Tribunal considered factors such as the general public interest in transparency, the project’s controversy, and the use of public funds. It balanced these against the Council’s duty to obtain best value in procurement, the Council’s and the Developer’s commercial interests, ongoing negotiations, and the precedent-setting impact on the Council’s future dealings.

Outcomes

The Tribunal determined that the Commissioner did not err in law nor wrongly exercise discretion, particularly given Salter’s focus on the public interest in the Council’s earlier decision to carry out the development, rather than the disclosure of confidential commercial information in the Agreements. Consequently, the DN was confirmed, and the appeal was dismissed. The Tribunal also granted an extension of time for Salter to file his appeal, considering his unrepresented status, his proactive communication, and the lack of material prejudice from the delay.

Conclusion

The Salter v The Information Commissioner case elucidated key provisions of the EIR, focusing on the legal tests for exceptions to the general duty of disclosure and the critical balance of public interests. Ultimately, the Tribunal upheld the principle that while transparency is highly valued, the legitimate economic interest and confidentiality in commercial agreements can outweigh the public interest in full disclosure. This judgment reinforces the nuanced balance public authorities must strike when handling environmental information requests that engage commercial confidentiality, and highlights the high threshold for the public interest to override such exceptions.