On 4 August, a complainant had written to Natural England and requested the following:

'Please disclose whether access has been permitted to Forestry Commission land for culling Badgers.'

Natural England responded on 18 August 2022, stating it was unable to confirm nor deny whether the information was held. Natural England had sought to rely on Regulations 12(5)(a) and 12(6) of the Environmental Information Regulations 2004 (EIRs). Regulation 12(6) provides that a public authority can respond to a request by refusing to confirm or deny that it holds the requested information if doing so would adversely affect public safety: withholding information that if disclosed would result in hurt or injury to a member of the public.

Natural England explained that the badger control policy is an extremely sensitive issue and has provoked considerable public interest and debate. If it were to start to confirm or deny locations where badger culling was permitted in any similar request, it would allow protestors to better locate individuals and staff members who are associated with these locations. These individuals could then be targeted for the purpose of objection whilst also putting them at risk of harm or harassment.

In opposition, the complainant advised that the weight of the public interest in disclosing the requested information was substantial, due to the Government’s badger control policy being highly controversial. There would be no adverse effect on public safety as the location of land accessible for culling would not be disclosed and landowners or tenants who had been given permission would not be identified. Instead, 'there is a strong public interest in the creation of a sustainable environment, in transparency and accountability…' this will also aid public understanding and give them an opportunity to express their concerns.

'Public safety' is not defined within the EIRs but the ICO was satisfied that this would encompass the security of particular operations as well as the identity of individuals or locations involved in controversial projects: which would include badger culling. Helpfully the ICO also reminds us that hurt or injury can be anything from physical to mental health.

The ICO recognised the need to prevent a 'mosaic effect' from emerging, where snippets of information can be pieced together to form a larger picture. However, Forestry Commission land is not owned by an individual or small company and relates to a large number of sites. Issuing a confirmation or a denial would be of no assistance to anyone wishing to identify the boundaries of the cull areas more precisely. Overall, the risk to individuals would not be significantly greater than the risk they already face as a result of being within a cull zone.

As a result, the ICO upheld the complaint against Natural England and requires the public authority to confirm or deny (within 35 days) whether access has been permitted to Forestry Commission land for culling badgers.

This decision is a reminder that where a public authority holds environmental information:

  • it must make environmental information available proactively; and
  • members of the public are entitled to request environmental information from public authorities.

The duty applies to politically sensitive and controversial information or activities unless an exemption is available. Where a public authority has concerns that disclosure (either a confirmation or denial) would adversely affect public safety, it will need to consider whether the environmental information can be used to identify particular individuals or locations, or otherwise 'significantly' increase the risk of harm.

It is not enough that a policy or strategy makes for uncomfortable reading. In the absence of a risk of harm, public authorities will need to embrace the challenge that comes from public discourse, recognising (as the complainant raised in this case), that 'an informed and involved public helps to promote good decision making.'