Regulation 10(5)(d): Confidentiality of proceedings

When disclosure of environmental information would substantially prejudice the confidentiality of the proceedings of a public authority.

Confidentiality of proceedings#

Regulation 10(5)(d) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the confidentiality of the proceedings of any public authority, where that confidentiality is provided for by law.

In plain terms#

The authority is saying that the information comes from proceedings that are legally required to be kept confidential, and releasing it would cause real harm to that confidentiality. This might involve investigative proceedings, regulatory hearings conducted in private under statute, or governance processes protected by law.

A regulatory body holds environmental information gathered during a statutory investigation conducted behind closed doors. The body argues that its governing legislation requires these proceedings to be confidential and that releasing the information would undermine the confidentiality that enables witnesses and participants to speak freely.

The legal detail#

To apply this exception, the authority must show three things:

The information relates to the proceedings of a public authority - this is a broad term covering investigative, regulatory, administrative, and governance processes
The confidentiality of those proceedings is provided for by law - either by a specific statute or by the common law of confidence
Disclosure would, or would be likely to, cause substantial prejudice to that confidentiality

The second condition is critical. The authority cannot simply decide that its proceedings are confidential. The confidentiality must have a legal basis. An internal policy of keeping certain meetings private is not enough - there must be a statutory provision or a recognised duty of confidence at common law.

The public interest test#

The public interest test applies, and the authority must apply the presumption in favour of disclosure. Where the proceedings concern environmental harm, regulatory failures, or matters of public health, the public interest in transparency may outweigh the interest in maintaining confidentiality.

See What can they refuse? for how the public interest test works under the EIR(S).

How it’s used in practice#

This exception is less commonly invoked than the commercial confidentiality exception in regulation 10(5)(e). It tends to arise in the context of regulatory proceedings, statutory inquiries, and quasi-judicial processes where legislation requires confidentiality.

The Commissioner expects authorities to apply the exception on a case-by-case and document-by-document basis. Blanket claims that all proceedings of a particular type are confidential will not satisfy the substantial prejudice test. The authority must explain what specific harm disclosure would cause to the particular proceedings in question.

Authorities also need to distinguish between this exception and regulation 10(5)(b) (course of justice). Where the proceedings are judicial in nature, regulation 10(5)(b) is more likely to be the appropriate exception. Regulation 10(5)(d) covers the wider category of non-judicial proceedings that are protected by statutory or common law confidentiality.

How to challenge it#

What is the legal basis for the confidentiality? Ask the authority to identify the specific statute or legal principle that makes the proceedings confidential. If they cannot point to one, the exception cannot apply.

Has the confidentiality already been lost? If the substance of the proceedings has been published, discussed publicly, or disclosed to third parties, the confidentiality may no longer exist.

Is the prejudice substantial? The authority must show real and significant harm to the confidentiality, not just that the information came from confidential proceedings. If the proceedings are concluded and the participants’ identities already known, the case for withholding weakens.

See What to do if refused for the full process.

You can also use our interactive challenge tool for this exception to work through these questions step by step and draft a review request.

Good to know: The emissions carve-out applies. Under regulation 10(6), this exception cannot be used to withhold information that relates to emissions. If the environmental information concerns emissions - the release of substances, vibrations, heat, or noise into air, water, or land - the authority must find another ground for refusal or disclose the information. Under FOISA, section 36(2) (confidentiality) covers some of the same ground but works differently - it applies where disclosure would constitute a breach of confidence actionable in court, rather than requiring the confidentiality to be “provided for by law.”