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You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Amin v Information Commissioner [2025] UKFTT 325 (GRC) (14 March 2025) URL: http://www.bailii.org/uk/cases/UKFTT/GRC/2025/325.html Cite as: [2025] UKFTT 325 (GRC)

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First-tier Tribunal
General Regulatory Chamber
Information Rights

		Heard by: Cloud Video Platform Heard on: 11 March 2025
		Decision Given On: 14 March 2025

Decision: The Appeal is Allowed.

Substituted Decision Notice: The Department for Environment, Food and Rural Affairs shall, within 35 days of being sent this Decision, disclose a copy of the briefing paper at pages 3, 4 and 5 of the Closed Bundle save that the name of the policy advisor at page 4 under the heading "Attendees" shall be redacted pursuant to regulation 13 Environmental Information Regulations 2004.

REASONS
1. This appeal is brought by Mr Amin by reg 18 Environmental Information Regulations 2004 ("EIR") and section 57 Freedom of Information Act 2000 ("FOIA"). It relates to a Decision Notice ("the DN") issued by the Information Commissioner ("the IC") on 3 September 2024 with reference number IC-304809-T3B5 and it concerns a request for information ("the Request") made by Mr Amin to the Department for Environment, Food and Rural Affairs ("DEFRA") on 8 December 2023.
2. What follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The absence of a reference by us to any specific submission or evidence does not mean it has not been considered.
3. In this Decision page numbers indicated by their inclusion in brackets refer to pages of the Bundle and/or the Closed Bundle. Where any matter is underlined that has been added for emphasis.

Evidence and matters considered

4. The Appellant was represented by Counsel but was also in attendance. He had provided a statement and gave evidence. The IC was not represented. DEFRA was not a party.
5. We had the Bundle of 222 pages and a small Closed Bundle. As regards the closed material we noted that an application had been made on 11 February 2025 and an order made pursuant to rule 14(6) The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 on 13 February 2025 by the Registrar.

Background in summary

6. DEFRA is a government department. The request in this matter relates to a time when Mark Edwards was a Minster of State at DEFRA. The part of the request subject to this appeal relates to a meeting to be held between the Minster and "DRAX" about "agri innovation policy" on 10 January 2023 (C210).
7. "Drax" is a reference to the well – known power generation business which in the UK incudes the running of Drax power station which uses biomass fuel. Mr Amin in his Appeal says (A22):-

"Drax is a "bioenergy" company that burns biomass – in this case wood pellets – to create energy for power and heat in the UK. It is by far the largest biomass power company in Britain and also the largest emitter of CO2. The firm has also, controversially, received £6.5 billion in public subsides reserved for generators of low carbon energy. This is because biomass feedstock – including wood pellets – are deemed to be low carbon by the government if they are sourced sustainably from pupose-grown forests. Despite concerns over the efficacy of Drax's low carbon power and the sustainability of the biomass it sources – which are spelled out below – the firm continues to receive public subsidies and is likely to see business grow as Britain develops its biomass sector"

8. Other information provided by Mr Amin in his statement includes (A46) for example:-

"19...Biomass makes up roughly 4% of the UK's total electricity generation, most of which comes from Drax which is the largest biomass power company in Britain. In 2021 9.1 million tonnes of wood pellets were imported into the UK for biomass power"

"20. Bioenergy, produced from biomass, is currently considered by the UK government to be a renewable, low-carbon energy source, provided it is produced from sustainable sources. Drax insists that its biomass generation is "carbon neutral" because the emissions produced from its chimney stacks are offset by the emissions absorbed by the trees that are grown to produce the pellets. But this point is controversial and many think it would take decades for trees to absorb enough carbon dioxide to offset the emissions produced immediately as pellets are burned."

9. As regards the phrase "agri innovation policy" Mr Amin says that (A27):-

"In my role as an investigative journalist I have asked several sources what the phrase might refer to, and none could answer with any confidence. Biomass analysts at the climate and energy think tank Ember – which publishes regular reports on Drax – told me that the "agri-innovation policy" phrase "did not ring any bells"

Role of the Tribunal

10. While this background is useful for the Appeal it is also important to note that the Tribunal's role is by Section 58 FOIA which provides that:-

(1)If on an appeal under section 57 the Tribunal considers—

(a)that the notice against which the appeal is brought is not in accordance with the law, or

(b)to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

The EIR

11. Reg 5 EIR says as follows:-

"5.—(1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request"

12. Reg 12(1) EIR provides that:-

12.(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

(a) an exception to disclosure applies under paragraphs (4) or (5); and

(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

13. In this Appeal the remaining relevant exception is that at reg 12(4)(e) which states that a public authority may refuse to disclose information to the extent that "(e) the request involves the disclosure of internal communications." By reg 12(1)(b) EIR this exception is subject to the public interest balancing test ("PIBT").
14. The relevant date for considering the PIBT was considered by the Upper Tribunal in Montague v The Information Commissioner and Department for Business and Trade [2022] UKUT 104 (AAC). In Montague (58-60) it was concluded that the correct time for determining the PIBT is the date the public authority makes its decision on the request which has been made to it. In Counsel's submission the difference between FOIA and EIR is that for EIR the date is the later date of the outcome of any review (in this case 26 March 2024) because of the obligation to review in reg 11(3) EIR.
15. We were not called upon to reach a conclusion on this point because we concluded that the PIBT was in favour of disclosure at the date of the initial response and/or response after review.

Law

16. The ICO in its published guidance ("the Guidance") on this Regulation states:-

"The underlying rationale behind the exception is that public authorities should have the necessary space to think in private."

"...the exception is drafted to cover all internal communications, not just those actually reflecting internal thinking"

17. In Land Baden-Württemberg v DR (C-619/19), the Court of Justice of the EU held that reg 12(4)(e) "must be understood as concerning information that circulates within a public authority and which, on the date of the request for access, has not left the public authority's internal sphere – as the case may be, after being received by that authority – inter alia as a result of being disclosed to a third party or being made available to the public" (para 47). It held that there was nothing in the wording of reg 12(4)(e) to restrict it to "covering only the personal opinions of a public authority's staff and essential documents or as not including information of a factual nature", and that such a narrow interpretation would be "incompatible with that provision's objective, namely the creation, for public authorities, of a protected space in order to engage in reflection and to pursue internal discussions"
18. In Amin v The Information Commissioner and Department of Energy and Climate Change (Information rights: Environmental information – exceptions) [2015] UKUT 527 (AAC) the Upper Tribunal said that:-

"102. Where the exception in reg. 12(4)(e) is relied upon, the public authority must identify the prejudice to the public interest which would occur if the information were to be disclosed. There is no presumption that there will be some such prejudice merely because the information falls within the definition of "internal communications". But nor is the prejudice to the public interest which can be relied upon limited to any particular kind of prejudice, or prejudice arising in any particular way. It is not limited to the need for 'safe space' for 'policy formulation and development'. It seems to me that it is sufficient that disclosure would in some way prejudice the effective conduct of public affairs (cf. the catch-all provision in s.36(2)(c) of the Freedom of Information Act 2000). The only limitation, it seems to me, is that the prejudice must be related to the fact that the communications are internal ones."

19. The Guidance while not binding is useful and sets out how a public authority should assess the PIBT. It says for example:-

"Your public interest arguments should focus on the protection of internal deliberation and decision-making processes. This reflects the underlying rationale for the exception: to protect a public authority's need for a 'private thinking space"

20. The Guidance calls for a consideration of the arguments for and against disclosure:-

"The relevant factors must be balanced against the public interest in disclosure. Regulation 12(2) provides that you should apply a presumption in favour of disclosure. This means that you are likely to have to disclose some internal communications, even if disclosure has a negative effect on your internal deliberation and decision-making processes."

21. In this Appeal DEFRA relied upon "chilling effect" arguments in favour of maintaining the exception. We were referred to Davies-v- the Information Commissioner and the Cabinet Office [2019] UKUT 195 (AAC). The Upper Tribunal held in this case:-

"25. There is a substantial body of case law which establishes that assertions of a "chilling effect" on provision of advice, exchange of views or effective conduct of public affairs are to be treated with some caution. In Department for Education and Skills v Information Commissioner and Evening Standard EA/2006/0006, the F-tT commented at [75(vii)] as follows: "In judging the likely consequences of disclosure on officials' future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department's position, whether or not it is their own."

26. Although not binding on us, this is an observation of obvious common sense with which we agree. A three-judge panel of the Upper Tribunal expressed a similar view in DEFRA v Information Commissioner and Badger Trust [2014] UKUT 526 (AAC) at [75], when concluding that it was not satisfied that disclosure would inhibit important discussions at a senior level:

"75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it…

76. …They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules."

27. In Department of Health v Information Commissioner and Lewis [2015] UKUT 159 (AAC); [2017] AACR 30 (Lewis) Charles J discussed the correct approach where a government department asserts that disclosure of information would have a "chilling" effect or be detrimental to the "safe space" within which policy formulation takes place, as to which he said: "27. …The lack of a right guaranteeing non-disclosure of information...means that that information is at risk of disclosure in the overall public interest … As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that … a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed… 28. …any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest. 29. … In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: i) this weakness, … is flawed."

28. Charles J discussed the correct approach to addressing the competing public interests in disclosure of information where section 35 of FOIA (information relating to formulation of government policy, etc) is engaged. Applying the decision in APPGER at [74] to [76] and [146] to [152], when assessing the competing public interests under FOIA the correct approach includes identifying the actual harm or prejudice which weighs against disclosure. This requires an appropriately detailed identification, proof, explanation and examination of the likely harm or prejudice.

22. Additionally by reg 12 (2) "A public authority shall apply a presumption in favour of disclosure." It was held by the Upper Tribunal in Vesco -v- the Information Commissioner & the Government Legal Department [2019] UKUT 247 ACC that:-

"13 The EIRs (and the Scottish EIRs where Scottish public authorities are concerned) provide a legal basis for requesters to obtain environmental information from public authorities. The environment needs people to protect it and, if need be, challenge matters which may have an adverse impact on the environment. There has therefore been a move, internationally and nationally, to enable the public to participate in decisions about the environment in which they live. One aspect of public participation is that in environmental cases there are special provisions that proceedings should not be prohibitively expensive (Edwards and Another (Appellant) v Environment Agency and Others Case 260/11). Another aspect of public participation is that the public should have access to information, so they can be informed about matters relevant to the environment and be able to take decisions accordingly. These public participation obligations arise under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental matters ("Aarhus"), which led to adoption of the Directive. The EIRs are part of the UK's implementation of its obligations under the Directive. The EIRs fall to be interpreted purposively in accordance with the Directive (Marleasing SA v La Comercial Internacional de Alimentacion SA Case C-106/89 paragraph 8; The A-G for the Prince of Wales v Information Commissioner and Mr Michael Bruton [2016] UKUT 154 paragraph 15). In turn, although not material to this particular case, account is taken of Aarhus when interpreting the Directive (Fish Legal v Information Commissioner C-279/12, paragraphs 35-38)

"14. It is clear from the extracts from the Directive set out in the governing legislation section above that the purposes of the Directive include guaranteeing rights to access environmental information. Public authorities hold information on behalf of the public, and are to support and assist the public in seeking access to information. As the Court of Justice of the European Union ("CJEU") has said: "The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal". (Office for Communications v Information Commissioner Case C-71/10 at paragraph 22).

"19... It was "common ground" in the case of Export Credits Guarantee Department v Friends of the Earth [2008] Env LR 40 at paragraph 24 that the presumption serves two purposes: (1) to provide the default position in the event that the interests are equally balanced and (2) to inform any decision that may be taken under the regulations."

Request to Appeal (overview)

23. On 8 December 2023 Mr Amin made a request for information. The remaining relevant parts for this appeal are as follows (B141):-

"This is an EIRs request about the following meetings.

ii. 10/1/23 – Mark Spencer met DRAX to discuss agri-innovation policy

1. I am writing to request documents related to each of these meetings, including but not limited to:

c. Briefing notes"

24. On 30 January 2024 DEFRA responded to the Request. They (B146) reported what information they held and explained how they considered regs 12(4)(e) and 12(4)(d) applied. This position did not change after an internal review as reported on 26 March 2024 (B152). On 3 May 2024 Mr Amin complained to the IC (B157-B158). Following an investigation the IC reported in the DN that:-

"The Commissioner's decision is that regulation 12(4)(d) is engaged, but that the public interest favours disclosure. Regulation 12(4)(e) is engaged in respect of all the information to which the public authority has applied it, but the public interest only favours maintaining the exception for some of the information. For the remaining information, the public interest favours disclosure."

25. As regards the exception at reg 12(4)(e) the DN said it was engaged as regards a briefing note for the Minister prior to a meeting with Drax (para 21 A6) and that the PIBT favoured maintaining the exception (see para 27 on A6).
26. This Appeal was commenced on 30 September 2024. It is supported by Grounds (A21- A34). The IC Responded on 11 November 2024 (A35-A41).

Scope

27. There was no dispute that reg 12(4)(e) was engaged. From the above and from hearing Counsel we noted that the scope of this Appeal was limited to whether the IC was correct to decide that the PIBT favoured non – disclosure of the briefing note prepared the Minister ahead of a meeting he was to hold with Drax on 10 January 2023.

The positions of the parties on the PIBT

28. The parties put forward a number of matters that favoured disclosure. These included in general terms:-

(a) (B147) that disclosure of some information can aid "...accountability and transparency in government."

(b) (A7) "There is nothing improper about government ministers meeting with representatives of business nor in businesses seeking to influence policy. However, where this does happen there must be high standards of transparency to ensure that influence is not exercised in an improper manner."

29. More specifically in his Appeal Mr Amin made these points (A25):-

(a) disclosure would not impact the candour of civil servants and in any event it will have diminished by the time of the refusal some 12 months after the meeting.

(b) the absence of other material such as a readout or correspondence and the:-

"...lack of accessible information about the meeting in both the public domain and within DEFRA – as no record of the meeting was created..."

(c) "Transparency around the meeting is particularly important because of specific concerns around i. the effectiveness of public subsidies given to Drax ii. the opportunity which Drax had to lobby the minister on biomass policy that was in development at the time of the meeting (but completed at the time of request)"

(d) "The Commissioner failed to apply the presumption toward disclosure at Regulation 12(2)"

(e) Drax was in receipt of government large subsides for biomass (A29)

(f) there was considerable public debate about the environmental impact of Drax

(g) because of the lack of clarity over the phrase "agri innovation policy"

(h) because of the concerns raised in October 2022 by the BBC panorama program in "a Green energy scandal exposed" in which allegations were made that Drax was sourcing its wood pellets by cutting down an "old-Growth" forest in Canada.

(i) Drax was subject to questions in Parliament and an investigation by Ofgem.

(j) the January 2023 meeting was part of policy formulation which led to the publication by the Government of its Biomass Strategy in August 2023.

30. In his witness statement Mr Amin also said (A45):-

" As set out in the grounds of appeal, I consider the Commissioner has failed to give appropriate weight to the public interest in favour of disclosure for the following reasons: (i) disclosure of the briefing would not, as the Commissioner claims, necessarily affect the candour of civil servants; (ii) there is a lack of accessible information about the meeting in both the public domain and within DEFRA – as a readout of the meeting was not created; (iii) transparency around the meeting is particularly important because of specific concerns around (a) the effectiveness of public subsidies given to Drax (b) the opportunity which Drax had to lobby the minister on biomass policy that was in development at the time of the meeting (but completed at the time of request); (iv) the Commissioner failed to apply the presumption toward disclosure at Regulation 12(2)"

31. The parties put forward a number of matters that in their view favoured maintenance of the exception and these included:-

(a) (A7) there is always some value in allowing a public authority to have some internal thinking space, so that it can debate sensitive matters candidly but privately. This is particularly important during the early stages of policy formulation

(b) "In respect of the briefing papers... This was prepared based on an assessment of what Drax...were likely to bring up at the meeting and the strategic priorities they wished to pursue. That necessarily involves some candid assessments..."

(c) "...it is in the public interest that ministers receive candid briefings from civil servants and that that candour is likely to be affected by disclosure"

(d) "...the briefings don't necessarily reflect the actual discussions that took place or any lobbying that might have taken place"

(e) (B147) "...disclosing the information held by Defra could undermine effective government by discouraging frankness and candour in internal communications. It is important that government officials should have the necessary space to think in private and to formulate their decision-making"

(f) (B147) "Releasing information within the scope of your request at this moment in time would risk inhibiting officials from having full, frank and open discussions as part of the process of formulating policy, particularly if they felt that speculative information relating to live policy issues would be released before final decisions were made on those issues."

(g) (B155) "...disclosure would undermine effective government by discouraging frankness and candour in internal communications, damaging the quality of advice, and ultimately lead to poorer decision making... it is important that government officials should have the necessary space to think in private and to formulate their decision-making."

(h) (B155) "...releasing information within the scope of your request would risk inhibiting full, frank and open discussions as part of this process, particularly if those involved felt that speculative information relating to these discussions and decisions would be released as part of an information request"

32. At the Appeal Mr Amin also gave evidence about the process and timing by which meetings are disclosed to the public after the event. He explained that DEFRA was late in making this meeting public. In Counsel's submission this in – built delay creates any necessary safe space.
33. Counsel made a number of submissions in support of the PIBT favouring disclosure under the headings scale of the controversy, lack of public information about this meeting, prejudice and the EIR presumption.
34. From these submissions we noted for example Mr Amin's case on:-

(a) the evidence in the Bundle of the level of debate surrounding the effectiveness of the process used by Drax

(b) a National Audit Office report (A57) they had said that between 2002 and 2023 £22bn had been provided by government to support businesses using biomass to generate power and that £6.5bn was the:-

"...net amount in cash terms of government and consumer funding received by Drax, the largest recipient received by Drax, the of the Renewables largest recipient of the Renewables Obligation and Contracts for Difference Obligation and Contracts for Difference schemes, schemes, between 2002 and 2023"

(c) a report published in July 2023 by the global energy think tank Ember they said that Drax was the "power sector's single largest CO2 emitter despite generating only a small share of power."

(d) a report by EASAC (the European Academies Scientific Advisory Committee) that (A87):-

"The message emerging from our many publications and debates is that the urgency of the climate crisis requires that any renewable energy technology must succeed in reducing atmospheric levels of carbon dioxide soon enough to help meet the targets of the Paris Agreement. With average warming already over 1, it appears to EASAC's scientists that a 'renewable' energy that actually increases atmospheric CO2 for decades merely contributes to overshooting the 1.5 – 2 targets. Such technology is not effective in mitigating climate change and may even increase the risk of dangerous climate change"

(e) Ofgem's investigation into Drax which had later led to a large fine.

(f) concerns expressed on the use of land for the production of biomass fuel as opposed for example to food production.

(g) the apparent partnership between Drax and the National Farmers' Union (A132).

(i) the importance of there being scrutiny of corporate lobbying and that in this case this note is the only evidence of what the meeting was for (in the absence of a minute or read out).

(j) the absence of a proper consideration of the EIR presumption.

35. On the need for a safe space and the chilling effect Counsel referred to Davies and argued:-

(a) that the note was not concerned with the internal formulation of policy but was to prepare the Minster for an external meeting

(b) the existence of the "in - built delay" to listing the meetings held (exceeded in this case)

(c) to the passage of time between the note and the time DEFRA had to deal with the request for information.

(d) the absence of evidence from DEFRA (other than in a "boilerplate explanation") on how the chilling effect was said to apply in this case.

36. As regards the needs for space for "policy development" Counsel pointed out that net zero policy would be in development on an on – going basis but specifically in this case the meeting in January 2023 appeared to build up to a particular policy announcement in August 2023.

Closed Hearing

37. We reviewed the Closed Bundle and saw the 3–page briefing note prepared for the Minister. We noted the name of one person which we considered should be redacted by reg 13 EIR.

Our review

38. It is agreed that reg 12(4)(e) is engaged and the issue is whether the PIBT favours disclosure or maintenance of the exception. We had the benefit of having seen the small amount of disputed material.
39. We accept that all the arguments put forward by the parties on the PIBT are relevant for the consideration of it. We also accept that it is right to keep in mind the need of those advising Ministers to have a safe space and to allow policy to be debated and formulated in such a space. We accept that it is not in the public interest for advisors to feel unable to give advice without being candid. We accept that it is in the public interest for there to be uninhibited full, frank and open discussions. All these have weight.
40. As to the concern raised that "...the briefings don't necessarily reflect the actual discussions that took place or any lobbying that might have taken place" in our view this had some weight but not much because had it been the case, for example, that the meeting had not gone ahead or something very different took place or that the points in the note were never raised we would have expected DEFRA not to have left the Tribunal guessing but to have given some evidence on this and in a more overt and less hypothetical way.
41. In this case we gave considerable weight to the desirability of accountability and transparency and to assist in the public's understanding also taking into account for example:-

(a) the presumption in the EIR as seen in Vesco.

(b) the fact that the safe space /chilling effect argument had not been put forward in a compelling way by DEFRA as required in Davies.

(c) that considerable (and in our view ample) time had gone by since the meeting with Drax.

(d) while policy will continue to develop, there was a policy announcement in August 2023 that related back to this earlier meeting.

(e) that disclosure might assist in an understanding of the phrase "agri-innovation policy"

(f) that it was the only documentary evidence of this meeting and without disclosure there would be no public information about it thus rendering the meeting devoid of any transparency other than the fact it was to happen.

(g) that Drax is an important provider of power generation and have been in receipt of a large amount of public funds.

(h) that, as said in Davies, all those involved will have been aware that the note was susceptible to disclosure.

42. As regards the submissions that the issues involved matters of controversy it is important to note that the Tribunal in this Decision is not called upon to consider or reach any conclusions as to the merits of the arguments or the relative pros or cons of any particular type of power generation or fuel. We do however note that the debate clearly existed at the relevant date.

Decision

43. Having considered the PIBT arguments, their weight and the balance of the points raised, our Decision is that the PIBT favours disclosure, save for one name to which we consider reg 13 EIR applies. Accordingly, the DN was not in accordance with the law and the Appeal is allowed.

Signed: Tribunal Judge Heald

Date: 13 March 2025