Regulation 12(5)(d) – confidentiality of proceedings (Environmental Information Regulations)

About this detailed guidance

This guidance discusses regulation 12(5)(d) in detail and is written for use by public authorities. Read it if you have questions not answered in the Guide to the EIR, or if you need a deeper understanding to help you apply this exception in practice.

What does this guidance cover?

What do the EIR say?
What are the ‘proceedings’?
Is the confidentiality of proceedings provided by law?
Would disclosing the information adversely affect confidentiality?
How do we decide where the balance of the public interest lies?
Is there anything else we need to consider?

What do the EIR say?

Regulation 12(5)(d) states:

(5) a public authority may refuse to disclose information to the extent that its disclosure would adversely affect –

(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;

To determine whether you can rely on this exception, you must consider four questions:

What are the proceedings?
Is the confidentiality of those proceedings provided by law?
Would disclosing the information adversely affect that confidentiality?
In all the circumstances of the case, does the public interest in maintaining the exception outweigh the public interest in disclosure?

What are the ‘proceedings’?

The first question to consider is: what is meant by ‘proceedings’?

Definitions of ‘proceedings’ in the Oxford English Dictionary include:

doings, actions
a legal action or process
a record or account of the activities of a society or of papers submitted to it.

These definitions suggest that ‘proceedings’ can cover a range of activities; however, the ICO considers that the word implies some formality, ie it does not cover an authority’s every action, decision or meeting. The Upper Tribunal has defined ‘proceedings’ as “the final decision making stages of an authority”

It will include, but is not limited to:

formal meetings to consider matters that are within the authority’s jurisdiction
situations where an authority is exercising its statutory decision-making powers
legal proceedings.

In each of these cases, the proceedings are a means to formally consider an issue and reach a decision. ‘Proceedings’ could include, for example, the consideration of a planning application by a planning authority, or an internal disciplinary hearing in a public authority: both of these have a degree of formality. What constitutes an authority’s proceedings may be set out in its constitution, in its standing orders, or in law.

Example

In the case of Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021), the Department for the Economy had refused to extend a petroleum exploration licence granted to Tamboran Resources UK Ltd (TRUK). TRUK initiated judicial review proceedings, but the case never went to court. Mr White requested copies of all correspondence with TRUK, which covered a period during which pre-litigation correspondence was exchanged. The Department argued that disclosure would adversely affect the confidentiality of its proceedings and the Commissioner agreed.

Mr White appealed to First Tier Tribunal – which allowed the appeal. The First Tier Tribunal argued that the Commissioner had adopted an “exceptionally broad” interpretation of the exception and that pre-litigation exchanges were “not a proceeding of the Department.”

However, the Upper Tribunal sided with the Commissioner. Having quoted the ICO’s guidance approvingly, the judge went on to say that:

“The scope of ‘proceedings’ is not defined. However, I consider that the term must broadly apply to the final decision making stages of an authority…In the particular circumstances, the [Department] and TRUK were engaged in legal proceedings, which were not in themselves the proceedings of the [Department] as they fell to be determined by the High Court. However, in the course of the legal proceedings, the appellants had to make their own decisions about how those proceedings should be conducted…it appears to me that the decisions taken by the [Department] about their conduct of the legal proceedings potentially falls within the scope of their own regulation 12(5)(d) ‘proceedings’. This is because their own conduct of the litigation required formal decision making steps and consideration of evidence and legal advice. I consider that the FtT has erred by holding otherwise.”

However, ‘proceedings’ should not be defined so widely as to mean any meeting you hold, as these would not necessarily have the required degree of formality. The following examples show the possible extent and the limits of the definition.

Example

Decision notice FER0408840 concerned a request to Northumberland Care Trust (NCT). Northumbria Healthcare Foundation NHS Trust (NHFNT) had a contract with NCT to deliver healthcare services. NHFNT wished to set up an Emergency Care Centre. This required approval from NCT and, as part of this process, NHFNT submitted a business case to NCT. NCT received a request for the information in the business case and relied on regulation 12(5)(d) (and another exception) to withhold it.

NCT said that it had interpreted ‘proceedings’ in this case to include formal meetings, held in private, at which NCT discussed whether to approve NHFNT’s business case. In the particular circumstances of the case, the Commissioner accepted that NCT’s interpretation of ‘proceedings’ was covered by the exception, but found that disclosure would not adversely affect their confidentiality, so the exception was not engaged.

Example

Decision notice FER0098306/7 concerned a request to the Department for Environment, Food and Rural Affairs (Defra) for papers from meetings held between Defra ministers and representatives of Tesco and Asda. The meetings included a dinner Defra held for representatives of UK supermarkets. Defra partly relied on regulation 12(5)(d) to withhold the information.

In this case the Commissioner did not accept that these meetings constituted ‘proceedings’ as the term was not “so wide in its meaning as to include any business conducted by a public authority or its officials”.

Furthermore, ‘proceedings’ covers more than just meetings; for example, it could refer to an investigation by the Local Government Ombudsman into a complaint against a local authority, or an audit, both of which are governed by formal rules.

Is the confidentiality of proceedings provided by law?

The EIR implement EU Directive 2003/4/EC on public access to environmental information. That Directive in turn implements the Convention on Access to information, public participation in decision making and access to justice in environmental matters (the Aarhus Convention). The Implementation Guide to the Aarhus Convention says in reference to this exception that:

“The confidentiality must be provided for under national law. This means that public authorities may not unilaterally declare a particular proceeding confidential and stamp documents ‘confidential’ in order to withhold them from the public. National law must provide the basis for the confidentiality.” (page 59)

The confidentiality may be provided in statute or derived from common law. However, you cannot simply decide for yourself that the proceedings of a particular meeting are confidential: there must be a legal basis for this. The exception refers to the confidentiality of proceedings, not the confidentiality of the information.

Statute law

If a piece of legislation states that particular proceedings are confidential, the confidentiality of those proceedings will have a basis in statute law.

If the law only protects the information itself, not the proceedings, that law may not provide a statutory basis for the confidentiality of the proceedings.

Example

In the Information Rights Tribunal case of Chichester District Council v the Information Commissioner and Lynne Friel (EA/2010/0153, 16 March 2011), the council argued that regulation 12(5)(d) applied to information about land valuation that had been discussed in an Executive Board meeting. The council had relied on section 100A(4) of the Local Government Act 1972 to close that section of the meeting to the public. The tribunal found that the exception was not engaged and noted its doubt:

“…that a discretionary power to withhold information for one purpose only, would amount to confidentiality ‘provided by law’ such as to defeat the obligations under the EIR”. (paragraph 19)

The council appealed to the Upper Tribunal. In Chichester District Council v the Information Commissioner and Lynne Friel [2012] UKUT 491 AAC (23 August 2012), the Upper Tribunal found that the First-tier Tribunal had not applied the law correctly because it had asked itself the wrong questions:

“Under regulation 12(5)(d) it was required to ask itself whether the proceedings of the Executive Board on 12 February 2008 were confidential; whether the confidentiality of the proceedings was provided by law; and whether the disclosure of the information contained in the valuation which was referred to at the meeting would adversely affect the confidentiality of the proceedings. The tribunal did not ask itself any of those questions. The entire thrust of paragraph 19 [quoted above] concentrated on the information provided in the proceedings, rather than on the proceedings themselves…section 100A(4) of the Local Government Act 1972 is not concerned with the withholding of information but with the confidentiality of the proceedings in which the relevant recorded information was discussed.” (paragraph 18)

The reason the exception was ultimately found to be engaged in the above case was not because the particular information was sensitive – or even confidential (although it was). The exception was engaged because section 100A(4) of the Local Government Act 1972 allows a local authority to consider matters in private, where those matters concern the discussion of sensitive or confidential information. There was therefore a statutory basis for regarding the proceedings as confidential.

The Upper Tribunal’s binding judgment makes clear that you must first establish that there is a provision in law that protects the confidentiality of the proceedings in question. Only when you have established that there is such a provision should you then go on to consider whether disclosure of the information would adversely affect the confidentiality of those proceedings.

If a law prevents you disclosing certain types of information, it may indicate that this information forms part of proceedings whose confidentiality is provided by law. However, this will depend on the legislation’s purpose and wording.

Example

Decision notice FER0374428 concerned a request to the Local Government Ombudsman (LGO) for a copy of a complaint and associated correspondence. The information was withheld with reference to regulation 12(5)(d). Section 32(2) of the Local Government Act 1974 places a statutory prohibition on the disclosure of any information that was obtained in the course of, or for the purposes of, an investigation by the LGO. The Commissioner accepted that this section:

“... acts as a statutory prohibition on disclosure of information obtained in the course of or for the purposes of an investigation and is satisfied that responding to a request is not one of the reasons for disclosure provided for in sub-sections a) – c) of section 32(2)”. (paragraph 19)

The Commissioner therefore found that the confidentiality of the LGO’s investigations was ‘provided by law’. As disclosure would adversely affect the confidentiality of these proceedings, the exception was engaged.

The Information Rights Tribunal in Group Captain Dalley v Information Commissioner (EA/2011/0180, 15 February 2012) upheld the Commissioner’s decision.

Where information is exempt from disclosure under other legislation, this does not, in itself, prevent disclosure under the EIR. This is because regulation 5(6) of the EIR states that:

“... any enactment or rule of law that would prevent the disclosure of information in accordance with these Regulations shall not apply”.

The EIR differ in this respect from the Freedom of Information Act (FOIA), as information is absolutely exempt under section 44(1) of FOIA if its disclosure is prohibited by, or under, any law.

Common law

Even if there is no specific restriction in statute, the confidentiality of the proceedings may still be ‘provided by law’ where the proceedings are protected by a common law duty of confidence. This would apply, for example, where the proceedings involve negotiations with, or information obtained from, another party.

For the proceedings to be covered by the common law duty of confidence, they must have the quality of confidence. This means the information they cover must:

not be in the public domain already
not be trivial
be of importance to the confider.

You must also ensure that the information in question was provided in circumstances that would impart an obligation of confidence. This can be an explicit obligation, because there is a formal agreement or contract in place, or it can be an implicit obligation where both parties would recognise that information should be treated as confidential: for example, a patient speaking to their doctor.

You may wish to check what participants were told about the proceedings and what would happen to any information they provided.

If you are unsure whether any implicit obligation of confidence exists, you may find it helpful to apply the ‘reasonable person’ test used by Judge Megarry in Coco v A N Clark (Engineers) Limited [1968] FSR 415.

“… if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised, that upon reasonable grounds the information was being given to him in confidence then this should suffice to impose upon him the equitable obligation of confidence”.

For further discussion of the duty of confidence, see our FOIA guidance on Information provided in confidence.

Example

Decision notice FER0380352 concerned a request to Defra for copies of correspondence with the Duchy of Cornwall about the drafting of the Marine and Coastal Access Bill.

Cabinet Office guidance says that Prince’s consent (ie, consent from the Prince of Wales) should be sought when a bill could affect the interests of the Duchy of Cornwall; so the correspondence constituted formal proceedings. Defra explained that the information had the necessary quality of confidence because both sides had a reasonable expectation that the communications would not be disclosed, based on convention. The content of the correspondence was not in the public domain and had not been passed to any third parties, so the obligation of confidence had not been waived.

The Commissioner accepted that the common-law duty of confidence applied to the proceedings. As disclosure would adversely affect the confidentiality of the proceedings, the exception was engaged (paragraph 15).

Would disclosing the information adversely affect confidentiality?

The Commissioner has produced general guidance to assist you in applying the “adversely affect” test. This section deals with the arguments that are specific to regulation 12(5)(d).

The interest that regulation 12(5)(d) protects is the confidentiality of proceedings, where that confidentiality is provided by law.

Just because particular proceedings are confidential, it doesn’t mean that you can automatically rely on this exception. Even if you are satisfied that the proceedings are confidential, you can still only use this exception if disclosing the information would adversely affect that confidentiality.

‘Adversely affect’ means there must be an identifiable harm to, or negative impact on, the confidentiality of the proceedings.

The threshold for establishing that disclosure “would” have an adverse effect is a high one. It is not enough to demonstrate that the adverse effect “might” or “could be likely to” occur. You must demonstrate that it is more probable than not that the adverse effect would occur if the information were disclosed.

The exception is not solely concerned with information that has been prepared exclusively for confidential proceedings. There may be circumstances where proceedings deal with information that was originally produced for other purposes but is considered during those proceedings. This could engage the exception – if you can show that disclosure would adversely affect the confidentiality of the proceedings.

However, this does not mean that simply referring to pre-existing information during proceedings brings that information within the scope of this exception. For disclosure to adversely affect the confidentiality of proceedings, the information should form part of whatever constitutes those proceedings – such as the business of the meeting or the investigation or a report submitted to a meeting and included on the agenda.

This approach is consistent with the presumption in favour of disclosure in regulation 12(2) and the requirement in Article 4(h) of the Directive that the grounds for refusal must be interpreted in a restrictive way.

Other public authorities

The exception refers to the confidentiality of the proceedings “of that or any other public authority”. So the proceedings referred to don’t have to be your own proceedings.

This may be relevant to parliamentary privilege. Under regulation 3(4), the EIR do not apply at all to the Houses of Parliament “to the extent required for the purpose of avoiding an infringement of the privileges of either House”. If a request is made to either House and disclosing information would infringe parliamentary privilege, then the EIR do not apply.

However, if you held environmental information, but disclosing it would infringe parliamentary privilege, that information would still be covered by the EIR and you would still be obliged to consider it for disclosure on request. In such a case, it is likely that regulation 12(5)(d) would be engaged, since the confidentiality of parliamentary proceedings is protected by law and disclosure would adversely affect it. There would also be a very strong public interest in maintaining the exception.

Scottish public authorities are not covered by the EIR because there are separate regulations for Scotland. But regulation 12(10) makes clear that you can consider the effect on a Scottish public authority’s proceedings as well.

How do we decide where the balance of the public interest lies?

Even if the exception applies, you must still carry out a public interest test and apply a presumption in favour of disclosure before you can withhold the information.

The Commissioner has produced general guidance for carrying out public interest tests under the EIR. This section deals only with the factors specific to this exception.

Arguments for maintaining the exception

In the case of regulation 12(5)(d), public interest arguments for the exception must relate to the need to protect the confidentiality of proceedings. Arguments about protecting other interests are irrelevant.

Example

In Office of Communications v the Information Commissioner and T-Mobile (UK) Ltd (EA/2006/0078, 4 September 2007), the Information Tribunal said at paragraph 58:

“It seems to us that for a factor to carry weight in favour of the maintenance of an exception it must be one that arises naturally from the nature of the exception. It is a factor in favour of maintaining that exception, not any matter that may generally be said to justify withholding information from release to the public, regardless of content. If that were not the case then we believe that the application of the exceptions would become unworkable.”

There is always a general public interest in protecting confidential information. Breaching an obligation of confidence undermines the relationship of trust between confider and confidant, regardless of whether the obligation is based on statute or common law.

For this reason, the grounds on which confidences can be overridden are normally limited. A statute that prohibits disclosure of information may include certain exemptions from the prohibition (usually for law enforcement purposes). In common law there may be a public interest defence to a breach of confidence.

The fact that the confidentiality must be ‘provided by law’ implies that there is an inherent public interest in protecting it – although the strength of such an interest will depend on the facts of each case.

The public interest must arise from the need to protect the proceedings that would be adversely affected by disclosure.

Example

Decision notice FER0265816 concerned a request to a District Auditor for information from his audit of the sale of a golf course by a local authority. Section 49 of the Audit Commission Act 1998 (now repealed) prevented the disclosure of information obtained by the District Auditor.

In considering the public interest factors for maintaining the exception, the Commissioner said: “The Commissioner, when considering factors that favour the maintenance of the exemption, gives due weight to the fact that the legislator has placed in statue (section 49 Audit Commission Act 1998) that information received by a District Auditor, during a relevant investigation shall not be disclosed except in specified limited circumstances.” (paragraph 28)

Example

In decision notice FER0380352, referred to above, the proceedings in question were communications between Defra and representatives of the Prince of Wales, as Duke of Cornwall, on proposed legislation that could affect the Duchy. Defra argued that there was a public interest in confidentiality because of the constitutional convention that correspondence between the heir to the throne and the Government is confidential. The Commissioner did not accept that this argument was relevant because the proceedings were communications with the Duchy as a landowner, not with the Prince of Wales as heir to the throne.

However, there was a public interest in maintaining the confidentiality of communications between the Government and the Duchy for the purposes of seeking Prince’s consent. (paragraphs 18-20)

If another piece of legislation would normally prevent disclosure, you can still disclose the information under EIR. However, if disclosure would not normally be permitted, there is likely to be a strong public interest in maintaining the exception.

Example

Decision notice FER0348827 concerned a request to the Assembly Ombudsman for Northern Ireland and Northern Ireland Commissioner for Complaints (the Ombudsman) for information the Ombudsman received while investigating two complaints.

Article 19 of The Ombudsman (Northern Ireland) Order 1996 (the Order) prohibits the disclosure of information obtained by the Ombudsman except in limited circumstances. The Commissioner found that confidentiality of the Ombudsman’s proceedings was provided by law and that disclosure would adversely affect that confidentiality.

The Ombudsman argued that the Order creates an expectation of confidence and that, if information were disclosed that would ordinarily be protected by the Order, bodies and individuals would be less willing to provide information to the Ombudsman for fear of disclosure. The Ombudsman could compel third parties to provide information, but this would not be a good use of public resources and would also discourage the voluntary supply of information. This in turn would adversely affect the Ombudsman’s ability to investigate complaints – which would not be in the public interest. The Commissioner agreed.

Arguments for disclosure

Unlike the arguments for maintaining the exception, public interest arguments for disclosure do not have to be inherent in the exception. There is always a general public interest in public bodies being transparent and accountable. As our guidance on regulation 12(1) explains, the weight of this general public interest argument is significant because it relates to the purpose of the Directive and the Aarhus Convention.

There may also be more specific arguments for disclosure depending on the circumstances. For example, there is a need to ensure that proceedings such as investigations by an Ombudsman or auditor are carried out fully and rigorously. More transparency is likely to increase public confidence in these regulatory mechanisms.

If proceedings are covered by an obligation of confidence, the information the public would normally have about them is likely to be limited. There may be a strong public interest in transparency if there has been a suspicion of wrongdoing or maladministration – however, this is only likely to be the case if such suspicions are credible and supported by evidence.

Attaching weight to the arguments

Once you have drawn up the public interest arguments on both sides, you should then consider their relative weight to decide where the balance of the public interest lies.

One factor that may be significant is the extent to which disclosing the particular information would serve the public interests you have identified. There may be a public interest in disclosing information about the confidential proceedings of a particular authority, but that does not mean that the public interest in disclosing all information about those proceedings is equally strong.

The question you should ask yourself is, how far would disclosing this information add to public understanding? If it would not substantially add to that understanding (and especially if other relevant information is already in the public domain), the weight of that argument may be lessened, compared to the weight of the public interest in maintaining confidences.

Example

The Information Rights Tribunal case of Group Captain Dalley v the Information Commissioner (EA/2011/0180, 15 February 2012) concerned a request to the Local Government Ombudsman for information about a complaint made by a third party. The complaint concerned problems with drainage near the appellant’s property. He argued that there was a strong public interest in disclosing the information because it concerned drainage problems, and because of the alleged failure of the local planning authority to deal with them satisfactorily.

However, the Tribunal found at paragraph 12 that: “release of the requested information will not increase public knowledge of those issues. There is therefore nothing of any significance to be added to the general factors in favour of disclosure mentioned above and expanded upon in the Decision Notice.” The Tribunal found that the public interest in maintaining the exception outweighed the public interest in disclosure.

Is there anything else we need to consider?

Emissions

Regulation 12(9) prevents you using this exception to withhold information on emissions.

Neither confirm nor deny

Under the EIR, you can only refuse to confirm or deny whether you hold information if to do so would adversely affect the interests in regulation 12(5)(a) (international relations, defence, national security of public safety) and would not be in the public interest, or if doing so would breach any of the data protection principles. The EIR differ in this respect from FOIA, where ‘neither confirm nor deny’ provisions apply to most exemptions. You cannot use regulation 12(5)(d) to refuse to confirm or deny whether you hold information.

Further reading

You may also want to read our guidance on: