FT/EA/2024/0207 - [2025] UKFTT 01276 (GRC)

The Public Interest Test must be assessed as at the time of the Authority’s refusal of the Request.

In considering the Public Interest Test, we first turn to factors in favour of disclosing the Withheld Information.

As recorded in the Decision Notice, the Authority stated that battery energy storage sites are being developed across the country and it recognised that there is a public interest in information being made available, having regard to public safety and related concerns. Similarly, the Decision Notice recorded the Appellant’s argument (also reflected in his submissions in the appeal) that there is a public interest in information relating to the safety of such sites being disclosed in order to highlight any identifiable risks associated with these. This would facilitate more informed planning decisions being reached regarding proposed future sites.

We agree that it is in the public interest that information relating to incidents such as the Fire is disclosed so that the public, planning departments and other interested parties can access information on the potential dangers which battery energy storage sites might give rise to.

We consider that there is a general interest in transparency regarding the cause of the Fire (including, as addressed in the witness’s statement, the need to assess any alleged inconsistences in that regard). We also consider that there is strong public interest in knowing the cause of the fire for the purposes of the future safety of firefighters and of the general public living in the vicinity of battery energy storage sites.

The Appellant’s grounds of appeal stated that the sharing of information regarding the Fire is “paramount in Academics making decisions”, but we do not consider that to be material to the public interest arguments, save as part of the wider public interests referred to above.

In his grounds of appeal, the Appellant stated that there had been confusion as to what type of batteries were at the Site, as this had not been disclosed by the Authority or Cobalt Energy. He commented that there are two types of batteries: Lithium Ferro phosphate (LFP) and Nickel Manganese Cobalt (NMC) and that LFP are widely perceived to be the safest. The Appellant considered that it was important to know which battery type was at the Site, having regard to understanding the cause of the Fire as well as ensuring that firefighters had the knowledge of this for future attendance at the Site (for safety reasons).

We consider that there is some public interest in knowing what type of batteries were installed at the Site, linked to the preceding comments regarding the public interest transparency and safety.

We now turn to factors in favour of maintaining the exception in regulation 12(5)(e).

The Decision Notice recorded the Authority’s comments that disclosure of the Withheld Information would damage the economic interests of Cobalt Energy and its partners, citing a detailed response from Cobalt Energy arguing that it should not be disclosed.

We agree that that is a factor favouring maintaining the exception. This is because there is an inherent public interest in prejudice-based exceptions, to avoid the harm to which the exception relates – in this case, under regulation 12(5)(e), damage to the economic interests of Cobalt Energy. As we have found that regulation 12(5)(e) is engaged, this of itself means that there is some public interest in maintaining the exception in that regulation.

We also find, as recorded in the Decision Notice, that there are reports in the public domain regarding the Fire, including some produced by the Authority regarding its investigation and at least one independent report, which specifically address the nature, causes and results of the Fire. For example, the Authority’s Fire Investigation Report dated 8 February 2022 identified the cause of the Fire. It stated that “The findings of this investigation conclude that this event occurred following a failure within Battery Zone 3-Rack 7 Module 6 (BZ3-R7M6) which led to a thermal runaway.” In our view, the existence of those reports is a factor which reduces the public interest in disclosure of the Withheld Information (because there is already information in the public domain - in particular, regarding the causes of the Fire) and in turn is a factor which weighs in favour of maintaining the exception.

We accept that the Fire Investigation Report dated 8 February 2022 stated that the root cause of the failure within module 6 was unable to be identified. However, it also went on to state that this was because the recovered fire-damaged batteries had undergone significant failure such that all registration of the cell architecture had been lost. It also stated that such incidents are not unusual in battery failures, where the intense heat generated during thermal runaway processes can destroy the internal cell components. Consequently, it appears to us that disclosure of the Withheld Information would not further the public interest, in the sense that it would not help identify the cause of the Fire.

Incidentally, with regard to the stated public interest in knowing what battery type was used at the Site, the Appellant stated in his pleadings that this had since been disclosed. The Appellant explained that he had made a request to Orsted in this regard on 1 July 2024 and that Orsted had replied on 18 July 2024 confirming that Nickel Manganese Cobalt (NMC) batteries were used at the Site. This was, of course, after the date of the Authority’s refusal of the Request (which is applicable for the purposes of the Public Interest Test) but we consider that this was not a material factor favouring disclosure in any event, especially given the Fire Investigation Report’s findings as to: (a) the cause of the Fire being battery failure which led to a thermal runaway; and (b) the root cause of that battery failure being unidentifiable.

The Decision Notice also recorded the Authority’s arguments that disclosure of the Withheld Information would damage its ability to investigate other incidents in the future. The Commissioner correctly stated in the Decision Notice that the primary factors in respect of the public interest in maintaining the exception must relate to the issues which the exception is designed to protect (in this case, the commercial confidentiality of the Withheld Information). The Commissioner commented that the Authority’s arguments related to its ability to carry out investigations effectively, but that he nevertheless placed some weight on those arguments, as the Authority needs to hold commercially sensitive information in confidence for its investigations.

We consider that more weight should be attached to those arguments than appears to have been given to them by the Commissioner, for the following reasons.

As we have noted, the relevant Withheld Information was provided to the Authority under an implied duty of confidence in connection with the Authority’s investigation into the Fire. The Authority explained (and we accept) that it was important that third parties were freely able to provide sensitive information in respect of its investigations without fear of that information subsequently being publicly disclosed.

We also agree with the Authority’s arguments that disclosure of the Withheld Information (which, as we have addressed, is confidential and commercially sensitive) may mean that third parties are less willing to provide sensitive information to the Authority on a voluntary basis in the future. This would obviously have adverse implications for its investigations in the future, potentially reducing its ability to identify the causes of fires. In turn, this could mean that the Authority is less informed about future safety measures, including how to appropriately handle relevant fires, which also has risk implications for the fire officers and the general public.

We consider that these factors favouring maintaining the exception are relevant in that they relate as much to the need to protect the confidentiality of information as they do to the ability of the Authority to conduct its investigations. In other words, we consider that the need to protect the confidentiality of the Withheld Information is inextricably linked to the effectiveness of the Authority’s investigations. In that regard, regulation 12(5)(a) (public safety) could conceivably have been an applicable exception in the current instance, but we do not need to consider that, given our findings in respect of regulation 12(5)(e).

Overall, considering all the circumstances of the case, we consider that there are weightier factors in favour of maintaining the exception in regulation 12(5)(e). This is based on the following reasons.

We recognise the Appellant’s arguments relating to issues of public safety. We accept that there is strong public interest argument towards the disclosure of information which would further public safety.

However, we do not consider that there are strong grounds regarding the related argument that disclosure would help to inform planning decisions regarding proposed future battery energy storage sites. Based on the information provided by the Appellant, it appears that it is already well known which battery types are considered more unsafe than others. Also, in our view, matters related to safety could be considered in future planning decisions based on information already in the public domain regarding the Fire, without needing disclosure of the Withheld Information itself.

There is already significant information in the public domain regarding the Fire, including reports which specifically address the cause of the Fire. In short, we consider that most of the public interest factors favouring disclosure are sufficiently met by the information which is already in the public domain.

Conversely, we consider that disclosing the Withheld Information would not significantly further the public interest regarding the nature and causes of the Fire, especially taking into account the information which has already been publicly made available.

As we have noted, there is strong public interest argument regarding public safety. Whilst that is a factor favouring disclosure of the Withheld Information (which we have taken into account), we also consider that the public interest in safety is also served by not disclosing the Withheld Information, for the reasons referred to in paragraph 74.

In summary, we acknowledge that there are public interest factors favouring disclosure of the Withheld Information. However, most of those factors have been satisfied by information which is already in the public domain. In contrast, the disclosure of the Withheld Information would cause the prejudice we have referred to in respect of the engagement of regulation 12(5)(e) and we consider that there are other, related, public interest factors favouring maintaining the exception. In our view, considering all the circumstances of the case, the prejudice which would be caused by disclosure of the Withheld Information outweighs the public interest in disclosure of it.

It has not been necessary for us to apply the presumption in favour of disclosure pursuant to regulation 12(2), given that we have concluded that the interests in the Public Interest Test are not equally balanced.

For the above reasons, we find that regulation 12(5)(e) is engaged in respect of the Withheld Information and that the public interest favours maintaining the exception.