April 2024

Like many laws the Freedom of Information Act has apparent anomalies, which may or may not have been intentional.

It seems very odd, for example, that the FOI process doesn’t let you find out about complaints and other issues which council trading standards departments are pursuing with businesses. I’d expect even people who don’t much like FOI to think that kind of consumer protection information should be publicly available.

But it isn’t, because the Enterprise Act 2002 stops councils from releasing it. After some early legal disputation it was ruled that this legislation trumps the disclosure requirements of the FOI Act. To illustrate, here’s an ICO decision notice about a case relating to a window installation company.

Another anomaly is that obtaining environmental information is not covered by the FOI law, but by a separate set of rules, the Environmental Information Regulations. These are similar to the FOI regime, but not identical, and in my opinion both public authorities and people requesting information are not sufficiently alert to the differences.

These two anomalies are connected, in that I have recently successfully argued that while the Enterprise Act can block the disclosure of material under FOI, it can’t be used to prevent the release of environmental information. The EIR do not allow the legal basis for that kind of refusal.

So Hertfordshire Council have now been forced to send me copies of trading standards emails sent to Tesco about price displays under the planned Scottish deposit return scheme for single-use drinks containers.

(Businesses which operate across multiple locations can deal with just one council as the ‘primary authority’ for trading standards purposes. Tesco’s primary authority is Hertfordshire, where its corporate head office is based. This arrangement extends to Scotland, as – unlike the deposit scheme itself – consumer protection is not a devolved policy area.)

Over several months Hertfordshire Council went through a number of different and implausible arguments while it tried to resist giving me this documentation. It first proclaimed that due to the Enterprise Act disclosure would prejudice the administration of justice; it then moved to saying it would damage the interests of the information provider (ie Tesco); it finally decided to assert that a deposit return scheme for bottles and cans was nothing to do with the environmental issue of recycling – an argument dismissed by the Information Commissioner’s Office, which ruled in my favour.

The emails I have received show that in 2022 the council was telling Tesco that shop price labels would have to state the full price for the relevant bottled and canned products including the deposit, not a price separately without the deposit.

However the implementation of the Scottish scheme (which was beset by controversies) has since been postponed, so this is no longer a pressing concern. As matters now stand, the UK, Scottish and Welsh governments are pledged to introduce a UK-wide deposit return scheme in October 2025. If this goes ahead then the issue of how prices are displayed in order to be fair to consumers will doubtless be widely raised.

Further reading: I give a detailed account of the numerous significant differences between FOI and EIR, and how they affect the process of obtaining information, in my book.