The First-tier Tribunal has struck down an Information Commissioner's decision notice ordering the London Borough of Hammersmith and Fulham to disclose parts of its Hammersmith Bridge business case, ruling the notice was void for uncertainty because neither the Commissioner nor the council had identified which information in the 244-page document was already in the public domain.
The Tribunal determined the appeal on the papers, and substituted its own notice requiring the council, within 28 days, to:
- identify and disclose any parts of the Outline Business Case, or information contained in it, which the council publishes or has previously published on its own websites, past or present;
- identify and disclose any parts of the OBC included in public reports or papers produced by the council, including cabinet or committee reports; and
- identify and disclose any parts of the OBC published by the council in any other format or public forum.
The request was made in April 2024 by one of the council's own councillors, who asked for the Stage 2 Outline Business Case for the stabilisation, strengthening and long-term operation of Hammersmith Bridge. The submission of this document to the Department for Transport is a condition for the release of further government funding for the restoration.
The council refused, initially citing section 43(2) of the Freedom of Information Act 2000. The Commissioner recharacterised the request as one for environmental information and considered it under regulation 12(5)(e) of the Environmental Information Regulations 2004, which permits refusal where disclosure would adversely affect the confidentiality of commercial or industrial information protected by law to safeguard a legitimate economic interest. Section 50(4) FOIA, applied to the EIR by regulation 18, requires a decision notice to specify the steps a public authority must take to comply.
The Commissioner's notice of 5 June 2025 upheld the exception for material not already public, accepting that disclosure of pre-market engagement details, risk information and cost estimates would disadvantage the council and the public purse in the forthcoming procurement. But it ordered the council to disclose, within 30 days, the information in the OBC "already in the public domain". This was a category the council had invoked only in general terms during the investigation and which no one had actually mapped against the document.
The tribunal accepted the council's evidence that the task the notice imposed was impossible to perform or verify. The public domain encompasses information accessible anywhere, in any format, regardless of who put it there, and the council's witness - its assistant director of legal services - explained that compliance would require searching every matter mentioned across 244 pages against every conceivable public source, with contempt proceedings hanging over any error.
The tribunal agreed the notice lacked the specificity required by section 50(4), and observed that the Commissioner could not monitor compliance with an order whose scope he did not himself know.
The tribunal however rejected the contention that the OBC must be treated as an indivisible whole incapable of partial release, holding that the duty under the EIR is to make available information, not documents, that redaction of exempt material is commonplace, and that any confusion caused by a redacted text can be mitigated by an accompanying explanation.
The substituted notice reflects the council's own concession in evidence that an order framed by reference to material it had itself published would set a standard against which compliance could be objectively judged.
The substantive confidentiality findings were not disturbed on appeal, so the practical effect for the requester is disclosure only of OBC content the council has itself already made public.
London Borough of Hammersmith and Fulham v The Information Commissioner [2026] UKFTT 1056 (GRC) is available at the following link: https://caselaw.nationalarchives.gov.uk/ukftt/grc/2026/1056
