Smith v The Information Commissioner: Fire safety data withheld under EIR confidentiality exception

The First-tier Tribunal has upheld the Information Commissioner's decision permitting Merseyside Fire and Rescue Authority to withhold technical information about a battery energy storage site fire under the Environmental Information Regulations 2004. The case demonstrates the careful balance tribunals must strike between commercial confidentiality and transparency in matters affecting public safety.

Alan Smith requested correspondence between the Authority and Cobalt Energy Limited concerning a fire at a Liverpool battery energy storage facility on 15 September 2020. The Authority initially refused disclosure under section 41 of the Freedom of Information Act 2000, citing information provided in confidence. Following an internal review, it relied on regulation 12(4)(d) of the EIRs, arguing the information remained incomplete as part of an ongoing investigation.

After further correspondence, the Authority disclosed some material but withheld technical documents including diagrams, technical drawings, maps and operational data. It cited regulation 12(5)(e), which protects the confidentiality of commercial or industrial information where such confidentiality safeguards a legitimate economic interest.

The tribunal confirmed that regulation 12(5)(e) applied, finding the withheld information was commercial in nature, subject to an implied duty of confidence, and necessary to protect legitimate economic interests. Various documents were expressly marked as sensitive or proprietary. Others, whilst not similarly labelled, possessed the necessary quality of confidence given their nature and the circumstances of disclosure. The tribunal accepted that disclosure would provide competitors with access to schematics and technical data about equipment capabilities and efficiency, causing commercial detriment to Cobalt Energy and its partners.

Smith argued that public interest in safety information about battery energy storage sites should outweigh commercial concerns. He emphasised the importance of transparency regarding the fire's cause and the type of batteries installed, particularly given confusion between Lithium Ferro Phosphate and Nickel Manganese Cobalt batteries. The tribunal acknowledged strong public interest in information relating to firefighter safety and risks to those living near such installations.

However, the tribunal noted substantial information already existed in the public domain, including the Authority's Fire Investigation Report dated 8 February 2022, which identified the cause as battery failure leading to thermal runaway. Whilst the root cause of that failure could not be determined due to fire damage, the tribunal considered this diminished the public interest in disclosing additional technical materials.

Significantly, the tribunal attached considerable weight to the Authority's argument that disclosure could damage its ability to investigate future incidents. Third parties who provided sensitive information under implied duties of confidence might prove less willing to cooperate voluntarily in future investigations if such material could subsequently be publicly disclosed. This could reduce the Authority's capacity to identify fire causes and implement appropriate safety measures.

Applying the public interest test required under regulation 12(1)(b), the tribunal concluded that factors favouring maintaining the exception outweighed those supporting disclosure. Most public interest concerns had been satisfied by information already available publicly. Conversely, disclosure would cause commercial prejudice whilst potentially hampering future safety investigations.

The tribunal also noted, though it did not affect the outcome, that the Authority had breached regulation 14(2) by responding significantly beyond the prescribed 20 working days. Such delays undermine the effectiveness of environmental information access rights.

This decision illustrates the high threshold required to override commercial confidentiality protections, even where public safety considerations exist, particularly when substantial related information already sits in the public domain.