Regulation 10(5)(e): Commercial or industrial confidentiality

When disclosure of environmental information would substantially prejudice the confidentiality of commercial or industrial information protected by law.

Commercial or industrial confidentiality#

Regulation 10(5)(e) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the confidentiality of commercial or industrial information, where that confidentiality is provided for by law to protect a legitimate economic interest. This is one of the most commonly used EIR(S) exceptions.

In plain terms#

The authority is saying that the information is commercially confidential and that releasing it would cause real financial or competitive harm to a business. This comes up in requests about planning applications, pollution permits, waste management contracts, and any environmental data involving commercial operators.

You ask a council for the financial details of a waste management contract, including the operator’s pricing model and profit margins. The council argues that the information is commercially confidential and that disclosure would put the operator at a competitive disadvantage when bidding for future contracts.

The legal detail#

This exception has multiple requirements, all of which must be satisfied:

Is the information commercial or industrial in nature? The information must relate to commercial activity, trade, or industrial processes - not, for example, an authority’s internal policy discussions.
Is there a duty of confidence provided by law? The confidentiality must have a legal basis - an express contractual term, an implied duty arising from the circumstances in which the information was shared, or the common law of confidence. The authority cannot simply label something “commercial in confidence” without a legal foundation.
Does that duty protect a legitimate economic interest? The confidentiality must exist to protect a specific, identifiable economic interest - not a vague claim of “commercial sensitivity.” The authority should be able to explain what the economic interest is and why it needs protecting.
Would disclosure substantially prejudice that interest? The authority must show that releasing the information would cause real and demonstrable harm to the economic interest. Harm that is speculative, marginal, or theoretical is not enough.

This is a substantial prejudice exception. The Commissioner applies it on a case-by-case and document-by-document basis. Blanket claims that an entire contract or report is commercially confidential will not hold if parts of it can be released without harm.

The public interest test#

The public interest test applies, and the presumption favours disclosure. Environmental information often concerns activities that affect communities directly - pollution, waste, land use - and the public interest in understanding these activities can be powerful.

The Commissioner weighs the commercial harm against the public benefit of disclosure. Protection should be limited to the minimum time needed to safeguard the commercial interest. A contract that was commercially sensitive when signed may lose that sensitivity once the work is complete and the market has moved on.

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

How it’s used in practice#

Authorities commonly use this exception for operator pricing, bid information, proprietary processes, and financial projections. The Commissioner scrutinises these claims carefully.

The authority should consult the third party whose commercial interests are at stake before refusing or disclosing. The Section 60 Code of Practice sets out expectations for consulting third parties. But the decision on whether to disclose remains with the authority - a third party’s objection does not automatically justify withholding.

Older commercial information is harder to protect. Market conditions change, contracts end, and competitors move on. The authority must show that the specific economic interest would still be harmed at the time of the request, not at the time the information was created.

Where the authority has received environmental information from a regulated business - pollution monitoring data, discharge figures, waste returns - a claim of commercial confidentiality faces an uphill struggle if the public interest in understanding environmental performance is strong.

How to challenge it#

Ask what the legitimate economic interest is. The authority must identify it specifically. A general assertion of “commercial sensitivity” or “competitive disadvantage” is not enough.

Is the information already in the public domain? If the information (or the substance of it) has already been published, appeared in a public register, or been disclosed elsewhere, confidentiality cannot apply.

Is the confidentiality still necessary? If the contract has ended, the tender process concluded, or the market conditions changed, the commercial sensitivity may have passed. Ask what has changed since the information was created.

Can parts be released? Even if some information is genuinely commercially confidential, other parts of the same document may not be. Ask the authority to consider partial disclosure.

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. This is significant in practice - many industrial processes generate emissions data, and businesses cannot use commercial confidentiality to prevent its release. “Emissions” is defined broadly: the direct or indirect release of substances, vibrations, heat, or noise into air, water, or land. Information need only “relate to” emissions in a sufficiently direct manner to fall within the carve-out. In Decision 248/2024, an authority withdrew its reliance on a regulation 10(5)(f) exception after accepting that the requested information related to emissions. Under FOISA, the nearest equivalents are section 33 (commercial interests and the economy) and section 36(2) (confidentiality). Note that the EIR(S) test is more specific - it requires the confidentiality to protect a “legitimate economic interest,” which FOISA does not.