Safety and Airspace Regulation Group
Intelligence, Strategy and Policy
Mr T Henderson
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
28 August 2016
EIR reference: E0002782
Dear Mr Henderson
FREEDOM OF INFORMATION APPEAL
Further to my letter of 8 August 2016, I have now concluded my review of your appeal to
the CAA's reply to your original request for information on 14 May 2016.
Your appeal is in relation to your request:
‘under the Freedom of Information Regulations, please could you supply a copy of the “DEP
Final Report” as referred to in CAP 1385 Performance-based Navigation – Enhanced Route
spacing requirements.”
You will recall that, on 15 June 2016, the CAA was unable to provide a copy of the report as
it stated that the information was exempt from disclosure under Regulation 12(5)(e) of the
Environment Information Regulations 2004 (EIR), specifically on the grounds that it was
commercially confidential information, disclosure of which would likely harm NATS’
business interests. You subsequently requested, on 21 June 2016, a copy of the non-
disclosure agreement (NDA) between the CAA, NATS and DNV GL. The CAA provided
you with a copy of the NDA on 6 July 2016. You then wrote on 29 July 2016 requesting an
internal review of the CAA’s original decision to withhold release of the “DEP Final Report”
as referred to in CAP 1385 Performance-based Navigation – Enhanced Route spacing
requirements. I have now concluded my review.
I have considered all of the relevant documents, including the DEP final report.
For information requests to be dealt with under the EIR the information must come within
the definition of ‘Environmental information’. ‘Environmental information’ is defined in the
EIR as information on the state of the elements of the environment, factors affecting or
likely to affect those elements or measures and activities affecting or likely to affect those
elements and factors. I have considered the ICO guidance1 and I am satisfied that the DEP
final report falls within the definition of environmental information for EIR purposes as it
contains information on measures and activities affecting or likely to affect the elements and
factors referred to in Regulation 2(1) of the EIR.
1
https://ico.org.uk/for-organisations/guide-to-the-environmental-information-regulations/
Civil Aviation Authority
Aviation House 2NE Gatwick Airport South West Sussex England RH6 0YR www.caa.co.uk
Telephone 01293 573809 Mobile 07788 300520 xxxxxx.xxxxxx@xxx.xx.xx
The EIR give rights of public access to environmental information held by public bodies,
such as the CAA, on request, unless an exception applies and the public interest in
maintaining the exception outweighs the public interest in disclosing the information.
Does an exception apply?
I believe that the following exception, under Regulation 12 (5)(e) under the EIR, applies:
“the disclosure would adversely affect the confidentiality of commercial or industrial
information where such confidentiality is provided by law to protect a legitimate economic
interest”
I have considered the four stage test included in the ICO’s guidance on this exception:
The information is commercial or industrial in nature;
The information in the DEP final report relates to NATS’ commercial activity in a competitive
environment. This information was developed by NATS at significant cost. NATS sells its
services to third parties who require information and expertise of this nature.
It is confidential under either the common law of confidence, contract,
or a statutory bar;
The confidentiality of the information is imposed on the CAA by the NDA with NATS. The
ICO guidance states that if a public authority can establish that there is a binding
confidentiality clause covering the requested information, this is sufficient. The information
is not trivial and not in the public domain so it has the necessary quality of confidence. The
CAA has a contractual obligation to keep the information confidential and so this element of
the test is satisfied.
The confidentiality is protecting a legitimate economic interest;
Disclosure of the information would provide competitors with access to NATS’ unique
design methodology, analysis and know-how and would likely cause harm to NATS’
commercial position and market share in what is a competitive market.
The confidentiality would be adversely affected by disclosure
Disclosure of the information would inevitably harm the confidential nature of that
information by making it public and would affect the legitimate economic interests
mentioned above. The ICO guidance states that once the first three elements are
established the Commissioner considers it is inevitable that this element will be satisfied.
Public interest test
I have considered the public interest test in accordance with the ICO guidance.
I am satisfied that the CAA’s comprehensive assessment of the public interest test in the
response to the initial request was accurate and that the public interest in maintaining the
exception continues to outweigh the public interest in disclosure.
Further issues raised in your request for internal review
In your request for an internal review you assert that the information request concerns
information on emissions. However, ‘emissions’ is interpreted narrowly in the ICO
guidance, and Regulation 12(9) will only apply to information that is directly related to
Continued (2 of 3 pages)
emissions. I have considered the contents of the DEP Final Report and am satisfied that it
does not contain information on emissions for the purposes of the Regulations and so
Regulation 12(9) does not apply to this request.
You also make reference to the ICO guidance and EIR Code of Practice to challenge what
you perceive to be a broadly drafted confidentiality agreement. However, I consider your
references to be selective and do not accurately reflect the guidance or code of practice
when read as a whole. The thrust of the ICO guidance in relation to confidentiality clauses
is that a confidentiality clause alone will not justify withholding information but that the other
elements of the exception have to be satisfied together with the public interest test. The
guidance also stresses that a confidentiality clause will not prevent disclosure of information
that is not confidential in nature; the DEP final report is evidently confidential in nature.
The EIR Code of Practice does suggest that public authorities should reject confidentiality
clauses wherever possible but also acknowledges that there are circumstances where such
clauses are necessary and states that “any acceptance of confidentiality provisions must be
for good reasons and capable of being justified to the commissioner”. I am satisfied that
there were good and proper reasons to justify accepting confidentiality provisions in these
circumstances, particularly the likelihood that NATS would not share such confidential
information with the CAA without such provisions.
On balance, I have formed the view that the elements of the exception are satisfied,
together with the public interest test, to justify withholding disclosure of the DEP final report.
Therefore I uphold the decision of the CAA dated 15th June 2016 that the information
requested is exempt from disclosure under Regulation 12(5)(e) of the EIR and the public
interest in maintaining the exception outweighs the public interest in disclosure.
Rights of Appeal
Finally, I should advise you that, under the EIR, you have further rights of appeal to the
Information Commissioner’s Office. Should you have any reason to complain about any
aspects of the processing of your request and of your subsequent appeal, you should
contact the Information Commissioner's Office at:
The Information Commissioner's Office
FOI/EIR Complaints Resolution
Wycliffe House
Water Kane
Wilmslow
SK9 5AF
Yours sincerely
Philip Clarke
Philip Clarke
Manager: Safety Policy
Intelligence, Strategy and Policy Team
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