Select an area of expertise to find out more about our experience.
Find out more about our barristers and business support teams here.
Select an area of expertise to find out more about our experience.
Find out more about our barristers and business support teams here.
Investigative journalist Lucas Amin has had two back-to-back successes in the First-Tier Tribunal challenging decisions to withhold disclosure of environmental information held by public bodies.
In both cases, the Respondent government departments had relied on Regulation 12(4)(e) of the Environmental Information Regulations 2004, which creates an exception to the general duty to disclose when the information requested consists of internal communications AND public interest falls on the side of withholding, rather than disclosing the information. The idea behind the provision is to afford public authorities the necessary space to think in private, in order to develop ideas, debate live issues and reach decisions.
The decision in Amin v The Information Commissioner [2025] UKFTT 221 (GRC)
The first of the Amin decisions was given on the 24th February 2025, although the information request at the heart of the appeal dates back to July 2023. The Appellant was seeking disclosure of information relating to a 2022 decision to grant planning permission to a new coal mine in Whitehaven, Cumbria. He requested:
The Department responded, stating that the information sought in part 3 of the Request was not held, and that the information sought by parts 1 and 2 of the Request was withheld on the basis that Regulation 12(4)(e) was engaged and that the Public Interest Test favoured non-disclosure. The ICO reached the same conclusion in a January 2024 Decision Notice.
However, the FTT has now granted Mr Amin’s appeal against the Decision Notice, agreeing that Regulation 12(4)(e) was engaged, but holding that the public interest nevertheless weighed in favour of disclosure.
The decision highlighted the importance of considering the timing of the request and the relevant decision when applying the public interest balancing test, citing ICO guidance which explains that “this safe space only lasts for a short time, and once you have made an initial announcement, there is likely to be increased public interest in scrutinising and debating the details of the decision” [80].
The FTT considered arguments made on behalf of the Department that the publication of the withheld material would risk tainting the recommendations of the Planning Inspectorate, should the planning inquiry be reopened. However, it ultimately considered that the “considerable professional expertise” of the planning inspectors would be sufficient to maintain their independence. It also found that there was no evidence to suggest that there would be any material ‘chilling effect’ should the Withheld Information be disclosed.
The decision in Amin v The Information Commissioner [2025] UKFTT 00325 (GRC)
Less than a month later, on the 14th March 2024, the FTT gave its decision on a similar challenge. In December 2023, Mr Amin had requested disclosure from the Department for Environment, Food and Rural Affairs of documents including a briefing note prepared in advance of a meeting between the Minister and Drax, a power generation business which runs a biomass fuelled power station. Again, disclosure of certain information – including a pre-meeting briefing note – was withheld in reliance on Regulation 12(4)(e).
The FTT once again agreed that Regulation 12(4)(e) was engaged, but held that public interest weighed in favour of disclosure of all the requested information (with the exception of a single name, which it held should be redacted).
Heavier reliance was placed on ‘chilling effect’ arguments in this case than in the previous Amin case. However, the FTT nevertheless concluded that the argument “had not been put forward in a compelling way” [41] and seemed to adopt the cautious approach recommended in the case of Davies v the Information Commissioner and the Cabinet Office [2019] UKUT 195 (AAC) [21].
These two cases serve as a reminder that decisions to withhold disclosure on public interest grounds must be carefully justified – broad reliance on public policy and ‘chilling effect’ arguments are likely to fail if not properly supported.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
