Legal brief: Safeguarding secrets

Ross Fairley on how access to environmental performance data could disclose commercially sensitive information

For some years there have been moves to improve access to information revealing organisations’ environmental performance and to encourage greater public participation in the environmental sphere.

Access to environmental information is enshrined in international conventions, as well as EU and UK laws. However, there is a natural tension between transparency in decision-making and businesses wishing to protect commercially sensitive information.

Over the years, the ability of companies to argue that information provided to public bodies should not be disclosed more widely has been eroded. The law concerning when exceptions to disclosure can be relied on continues to evolve, and environment managers and businesses need to fully understand the risks and opportunities in this area.

The Freedom of Information Act 2000 and the Environmental Information Regulations 2004 (EIR) contain a number of exceptions where information can be withheld from public disclosure.

Two areas of the EIR would, on first reading, give businesses a degree of comfort that their commercial information would not be disclosed to competitors and others. These areas are: where disclosure of information would adversely affect intellectual property rights and where it would affect the confidentiality of commercial or industrial information.

Recent case law should heighten concerns, however. In Roy Jones (on behalf of Swansea Friends of the Earth) v Information Commissioner, Environment Agency and SI Green (UK) Ltd [2012] UKFTT 2011/0156, Jones requested detailed information from the Environment Agency Wales on the financial security provisions that SI Green had negotiated with the regulator in relation to a landfill permit.

When Jones was supplied with various documents with the financial information redacted, including a performance agreement and a bond, he took action.

The Information Commissioner agreed with the agency not disclosing financial information, but the First-Tier Tribunal (FTT) overturned this decision, despite SI Green’s argument that the data, if supplied, could be used by competitors to calculate the company’s business model.

The FTT applied a very narrow test of what is confidential information in law. Many lawyers have looked at this case and pointed out that the tribunal’s decision is at odds with other similar cases.

The case is currently on appeal and is likely to be heard soon. Whatever the outcome, the Jones case provides a stark warning to those who are providing financial information to public authorities.

In relation to the intellectual property exception, the Court of Appeal (CoA) decided in a 2009 case – The Office of Communications v Information Commissioner [2009] EWCA Civ 90 – that a list of all mobile phone base stations held by Ofcom, which was provided by the mobile network operators (MNO), could be disclosed.

This was despite the fact that the CoA was aware that the contemplated use of the information by the applicant (in this case for epidemiological research) would likely constitute an infringement of the MNO’s intellectual property rights.

Businesses providing a public authority with information related to intellectual property are clearly at risk of the details finding their way to a third party via freedom of information rules.

Of course, the occupant who successfully applies to receive that information may not have the strict legal right to use it, but that is of little comfort to the firm affected because it is often difficult to enforce intellectual property rights when there has been disclosure to a wider audience.

So what should a company do? The obvious answer is to take care in disclosing any potentially confidential or commercially sensitive information. Public authorities are sensitive to the needs of businesses, but have to comply with the law: if legitimate requests are made to disclose information they have little, or no, choice but to comply.

There are, however, a number of practical issues organisations should consider taking, including clearly labelling confidential information as such, thinking about what information is disclosed and providing contact details to the public authority so they can get in touch with the business if a disclosure request is made.

Requiring the return of documents if the public authority no longer needs them should also be considered.

Freedom of Information Act 2000

The Freedom of Information Act 2000 provides public access to information held by public authorities in the following ways: authorities are obliged to publish certain information about their activities; and members of the public are entitled to request information from authorities.

The Act covers recorded information held by a public authority in England, Wales and Northern Ireland, and by UK-wide public authorities based in Scotland. The Freedom of Information (Scotland) Act 2002 covers information held by Scottish public authorities.

The Environmental Information Regulations 2004

The Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 implement the EU Directive (2003/4/EC) on public access to environmental information. Both sets of Regulations came into force on 1 January 2005.

Environmental information includes data on air, water, soil, land, flora and fauna, energy, noise, waste and emissions, as well as details about decisions, policies and activities affecting the environment.