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

We now turn to the question of whether regulation 12(5)(e) was engaged in respect of the Withheld Information.

We agree with the Commissioner’s analysis, as set out in paragraph 13 of the Decision Notice, that the following conditions must be met if regulation 12(5)(e) is to be engaged:

If those conditions are satisfied then regulation 12(5)(e) will be engaged. In that regard, we consider that the Appellant, in his grounds of appeal, mischaracterised the position by reference to whether Cobalt Energy could dictate to the Authority what can and cannot be publicly disclosed under FOIA/the EIRs. Rather, the relevant question is whether those conditions are met. However, even if they are (and regulation 12(5)(e) is therefore engaged), then the Public Interest Test still needs to be applied.

We find that the Withheld Information is commercial or industrial in nature for the same reasons as given by the Commissioner in the Decision Notice – namely, because it is largely technical information relating to the equipment on the Site, including diagrams, technical drawings, maps and operational data regarding the Site, and the correspondence relates to that information. The Appellant also accepted that the Withheld Information would entail such material and that it would be industrial and commercial in nature.

We also find that the Withheld Information is subject to a duty of confidence in law for generally the same reasons given by the Commissioner in the Decision Notice. The Decision Notice recorded the Authority’s explanation that the relevant Withheld Information was provided to it by Cobalt Energy under an implied duty of confidence in order for the Authority to better understand the equipment in use at the Site and the causes of the Fire. Cobalt Energy also confirmed to the Authority that the relevant Withheld Information should not be disclosed.

We assessed the Withheld Information holistically and make our finding that it is confidential based on that holistic assessment. Various documents within the Withheld Information were expressly marked as being sensitive, confidential or ‘proprietary’. Whilst some documents were not so marked, we find that they had the necessary quality of confidence, because of the nature of the documents and/or the circumstances in which they were made available to the Authority. In one instance, for example, there was an express comment in an accompanying email which: (a) referred to the sensitive nature of the subject matter and the commercial implications to Orsted; and (b) specifically requested that the information was used only for the purposes of the Authority’s investigation and was not distributed to any third party, even within the fire service. We find that other documents within the Withheld Information were shared with the Authority in the same manner and under similar conditions, even if not expressly stated in respect of each document. We agree with the Authority’s submissions to the Commissioner that the Withheld Information provided to it by third parties was subject to an implied duty of confidence from those third parties.

We also find that confidentiality of the Withheld Information is required to protect a legitimate economic interest, on the basis that it contains sensitive information relating to the Site and equipment located at the Site, including technical drawings and operational data which are subject to intellectual property rights. We consider that disclosure of the Withheld Information under the EIRs would mean that competitors of Cobalt Energy and its partnerswould have access to it which they would not otherwise have (including schematics and technical data about the capabilities and efficiency of the equipment) and that this would be detrimental to the commercial interests of Cobalt Energy and its partners.

The Appellant submitted that there was no evidence of such detriment. However, we consider that it is self-evident that disclosure of information such as that we have described, which is commercially sensitive, confidential and not in the public domain, would be detrimental to the commercial interests of those to which it relates. We have also seen, in the closed bundle, comments from Cobalt Energy regarding its concerns about disclosure of the Withheld Material. For those reasons, we find that the disclosure of the Withheld Information would be detrimental to the commercial interests of Cobalt Energy and its partners.

Consequently, we concur with the analysis and findings in the Decision Notice that maintaining confidentiality of the Withheld Information is required to protect a legitimate economic interest and that such confidentiality would be adversely affected by disclosure of it under the EIRs.

For the above reasons, we therefore find that regulation 12(5)(e) is engaged in respect of the Withheld Information. Accordingly, we now turn to address the Public Interest Test.