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

This is an appeal against a decision of the Information Commissioner (“the Commissioner”) dated 1 August 2024 referenced IC-299461-L8C3 (“the Decision Notice”). The appeal concerns a request for information made to Affinity Water Limited (AWL”) under the Environmental Information Regulations 2004 (“EIR”). AWL is body that is a “public authority” for the purposes of EIR (regulation 2(2)(c)).

The parties opted for a determination of the appeal on the papers. The documentary evidence comprises an open and closed bundle. The closed bundle consists of the withheld information. It is held under Rule 14(6) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“2009 Rules”) in accordance with Tribunal directions of 2 January 2025.

The Tribunal also received information supplied by the parties in response to further Case Management Directions seeking clarification on certain points dated 1 July 2025 (see below). AWL has provided a Supplemental Closed Annex for which it seeks a further order under Rule 14(6) of the 2009 Rules. The Rule 14 Order that is already in place is broadly worded to encompass Closed material filed in these proceedings. For the avoidance of doubt, a further Rule 14 Order is made, subject to the outcome of this Decision.

The Rule 14 Order does not include a requirement for the Tribunal and the Commissioner to destroy the Closed material within 14 days of issue of the Tribunal’s decision, as sought by AWL. Such provision is opposed by the Commissioner who has confirmed that he retains both the open and closed bundles as served in section 57 FOIA appeals in accordance with his retention and disposal policy. The Tribunal agrees with the Commissioner for the reason stated. It is unnecessary and inappropriate for the Tribunal itself to be bound to destroy documents to a timescale specified by a party to proceedings.

The Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with Rule 32 of the 2009 Rules.

The Tribunal has produced this single open Decision. There is no need for us to produce a closed Decision.

On 5 March 2024, the Appellant sent this request (“the Request”) to AWL and requested the following information:

“I am compiling an inventory of information on the chalk streams of England. Will you please let me have a list of boreholes which abstract water from a chalk aquifer in you [sic] area. Please include the EA permit number and name of the nearest village or town if this is not apparent from the name of the source.”

Refusal of the Request

On 19 March 2024, AWL refused the request on the basis that the information requested was exempt from disclosure under regulation 12(5)(a) EIR (national security and public safety).

By Decision Notice dated 1 August 2024, the Commissioner found that AWL was entitled to rely upon regulation 12(5)(a) EIR and that the public interest favours maintaining the exception.The Commissioner did not require AWL to take any steps. The Commissioner gave the following reasons for his decision:

The information is ‘environmental’. It is information on a measure (the extraction of groundwater sources) likely to affect the environment (water).

Just because there has been no major attack on such infrastructure in recent times does not mean the information could be disclosed without increasing the risk.

Few boreholes are likely to have sophisticated security systems to protect them. Their security lies in the fact their locations are only known to a small handful of people.

Making more detailed information available increases the likelihood of boreholes being located and places them at greater risk of vandalism. An attack may not mean to cause mass damage or put the public at risk, but that could be the effect.

The Commissioner is satisfied that disclosure of the information would adversely affect national security and public safety. The requested information engages the exception under regulation 12(5)(a) of EIR.

Having made that finding, the Commissioner applied the public interest test. He found there is strong public interest in understanding where the process of extracting water from chalk streams is having major effects on rivers. The Commissioner is not satisfied that there is a pressing need to show exact locations.

AWL already makes some information available on its catchment area. During the course of the investigation, AWL disclosed a list of chalk boreholes and largescale map showing groundwater extraction points. It provided a four-digit grid reference and unique ID for each borehole. The disclosure suffices to satisfy the public interest.

Disclosure of the withheld information would not add significantly to the available information, but it would risk compromising critical infrastructure and affecting public safety.

The public interest lies in favour of withholding the information.