FT/EA/2024/0299 - [2025] UKFTT 01138 (GRC)

It is undisputed that the requested information is “environmental information” to which the EIR applies. The panel agrees.

Throughout our considerations, the Tribunal has kept well in mind that there is a presumption in favour of disclosure under EIR.

For regulation 12(5)(a) to be engaged in this case, disclosure of the requested information must adversely affect the listed matters, which in this case is either national security or public safety. The threshold is whether it is more probable than not that the alleged harm would occur if the withheld information were disclosed.

Neither “national security” nor “public safety” is defined in EIR. However, the term “national security” arises in other legislation and was considered by the House of Lords in the immigration case of Secretary of State for the Home Department v Rehman [2001) UKHL 47, where Lord Slynn of Hadley said: [OB – A105]

Clearly, national security includes threats posed by terrorism. This can include a “mosaic” effect, where seemingly harmless information may assist terrorists or those with malcontent when pieced together with other information they possess or could obtain.

“Public safety” is usually taken to cover hurt or injury to one or more members of the public. It does not need to be harm to the public as a whole.

There is an overlap between national security and public safety in cases such as this, where it is claimed that there would be an increased risk to water supply from disclosure.

The risk identified by AWL is the precise location of boreholes being pinpointed and exposed to damage in the wrong hands with a resulting threat of harm to national water supply infrastructure and/or contamination of public water supplies.

Our attention is drawn by both Respondents to another First-tier Tribunal decision in Owen Boswarva v Information Commissioner and Environment Agency of 13 July 2021 (Appeal refs. EA/2020/0332 & 0333). The Tribunal in that instance accepted at [30-31] that the “release of detailed information about large reservoirs [including information about maximum flood outlines, depth and speed] would adversely affect national security or public safety. This is because this information can be used as the basis for a terrorist attack, which would put the public in serious danger…”. This decision is not binding upon us, but we have no reason to disagree with the logical finding. However, it is not on all fours with this case.

Unlike Boswarva, compliance with the Request would not result in the release of detailed information about the precise location of a water source. What can be gleaned from the Abstraction Licence number is the specific number for the borehole, that the borehole has a purpose for public water supply, and the address of the licence holder. These details have emerged from the further information sought by the Tribunal and do not appear to be details before the Commissioner at the time of his decision.

In short, the concerns expressed by AWL emanate from identification of the precise location of boreholes. Yet, that information is not revealed from the Abstraction Licence number. As explained by AWL, the number enables a request to subsequently be made to the EA for disclosure of the Abstraction Licence. To that extent, the requested information holds the key to applying to access further information about the Abstraction Licence from the EA. (We are aware that Abstraction Licenses are held on a searchable public register, and that an Abstraction Licence could be requested without the licence number, albeit potentially more difficult to identify particular licences, as the Appellant indicates).

The Tribunal has considered the wider picture and the possible “mosaic” effect. In doing so we have looked at the risks from the viewpoint of someone with malign intent. Ultimately, however, the Tribunal does not agree that there is a causative link between disclosure of the withheld information and an adverse effect on national security or public safety.

From AWL’s own case, divulging the licence abstraction numbers would not of itself pose a risk to national security or public safety. The possible risk only arises from the steps that may be taken thereafter. Specifically, and as AWL identifies, the focus is on what happens when the licence abstraction numbers are then used to request the actual Abstraction Licence from the EA. In our view, should such a request be made to the EA then it will be the responsibility of the EA, as a public authority bound by the EIR, to decide if the exemption in Regulation 12(5)(a) applies to disclosure of the particular abstraction licence requested. Logically, that will be the critical decision-making stage in terms of considering whether there is a risk from disclosure to national security and public safety.

AWL has a duty under the 2020 Direction to have regard to any risks to national security (Article 3), to identify and assess risks to the provision of its water supply (Article 7) and to put in place measures to avoid or (if not possible) to mitigate those risks (Article 8). We recognise that AWL has identified a potential risk if abstraction licences are disclosed. It seems to us that AWL has sought to discharge those duties by refusing the licence numbers, which mean that further requests cannot then be made to the EA for the actual abstraction licence or information from it. Essentially AWL is expressing a concern that the EA will not properly consider national security concerns if requests about abstraction licences are made to it under the EIR. No evidence has been provided to us to indicate that AWL’s fears about how the EA will deal with such requests is well-founded

It is true that the EA is not a water company bound by the 2020 Direction (set out above), but it is bound by the EIR in just the same way as AWL. It would be incorrect to say otherwise. The EA is a national agency for which issues of national security will be to the fore when requests for information are made. Crucially, if it receives a request for the Abstraction Licences, then the EA can seek to rely on the same exemptions as those available to AWL, which of course include the national security exemption in regulation 12(5)(a). The DEFRA Guidance can still be considered. The same appeal procedure would apply.

AWL may fear that the EA would not be robust and reveal too much information, to the extent that AWL feels justified in not disclosing the information that would allow a further request to be made to the EA. It is not compelled to take that approach. If it has such fears, then one of the measures it could put in place in pursuance of its duties under the 2020 Direction is to notify the EA when disclosure of abstraction licence numbers has occurred and set out its concerns about further disclosure if further requests are made to the EA.

The Tribunal concludes that the exemption in regulation 12(5)(a) of EIR is not engaged by this particular request. It may be that national security concerns would be raised if further requests are made to the EA, but that is a matter for the EA to consider if and when such requests are made.

In reaching our view, we have not been influenced by the number of other water companies that have released abstraction licence numbers. We accept that different consideration may be relevant for each water company. Those decisions of other companies did not set any form of precedent. We are satisfied that each company will have undertaken its own assessment.

The Tribunal is keen to emphasise that it fully recognises the importance of protecting national security and public safety. Indeed, it is not difficult to see how the consequences of vandalism or sabotage to a borehole could be catastrophic with widespread public harm. However, in our view the potential risks do not arise from the disclosure of licence abstraction numbers as requested in this case.