Excluding info from public registers — EPA 1990 s. 123
EPA 1990 s. 123 lets the Secretary of State keep information off public registers for national security, environmental risk, or 4-year commercial secrecy.
No information shall be included in the register under section 122 above if and so long as, in the opinion of the Secretary of State, the inclusion of the information would be contrary to the interests of national security. No information shall be included in the register if and so long as, in the opinion of the Secretary of State, it ought to be excluded on the ground that its inclusion might result in damage to the environment. No information relating to the affairs of any individual or business shall be included in the register without the consent of that individual or the person for the time being carrying on that business, if the Secretary of State has determined that the information— is, in relation to him, commercially confidential; and is not information of a description to which subsection (7) below applies; unless the Secretary of State is of the opinion that the information is no longer commercially confidential in relation to him. Nothing in subsection (3) above requires the Secretary of State to determine whether any information is or is not commercially confidential except where the person furnishing the information applies to have it excluded on the ground that it is (in relation to himself or another person) commercially confidential. Where an application has been made for information to be excluded under subsection (3) above, the Secretary of State shall make a determination and inform the applicant of it as soon as is practicable. Where it appears to the Secretary of State that any information (other than information furnished by the person to whom it relates) which has been obtained under or by virtue of any provision of this Part might be commercially confidential, the Secretary of State shall— give to the person to whom or to whose business it relates notice that the information is required to be included in the register unless excluded under subsection (3) above; and give him a reasonable opportunity— of objecting to the inclusion of the information on the ground that it is commercially confidential; and of making representations to the Secretary of State for the purpose of justifying any such objection; and the Secretary of State shall take any representations into account before determining whether the information is or is not commercially confidential. The prescribed particulars of or relating to the matters mentioned in section 122(1)(a), (c), (d) and (e) above shall be included in the register notwithstanding that they may be commercially confidential if and so far as they are of any of the following descriptions, namely— the name and address of the person giving the notice or furnishing the information; the general description of any genetically modified organisms to which the notice or other information relates; the location at any time of those organisms; the purpose for which those organisms are being imported, acquired, kept, released or marketed (according to whichever of those acts the notice or other information relates); results of any assessment of the risks of damage to the environment being caused by the doing of any of those acts; notices under section 112(3), (4), (5) or (7) above; and the Secretary of State may by regulations prescribe any other description of information as information which the public interest requires to be included in the register notwithstanding that it may be commercially confidential. Information excluded from the register under subsection (3) above shall be treated as ceasing to be commercially confidential for the purposes of that subsection at the expiry of a period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it or to whom or to whose business it relates may apply to the Secretary of State for the information to remain excluded on the ground that it is still commercially confidential. The Secretary of State may by order substitute for the period for the time being specified in subsection (8) above such other period as he considers appropriate.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
Section 123 allows certain information to be withheld from the public register established under section 122. Information must be excluded if the Secretary of State considers that publishing it would harm national security or increase the risk of damage to the environment.
Information concerning an individual or business can also be excluded on grounds of commercial confidentiality. The Secretary of State only decides whether information is commercially confidential if the person who provided it applies for an exclusion, or if third-party information is gathered that might be confidential. In third-party cases, the affected party must be notified and given a reasonable opportunity to object and make representations.
Commercial confidentiality exclusions last for four years from the date of the determination, after which the information is no longer treated as confidential unless the applicant re-applies. Certain core details—such as the applicant's name and address, general descriptions and locations of genetically modified organisms, environmental risk assessment results, and specific official notices under section 112—cannot be excluded on commercial grounds.
When it applies
- A biotechnology business applies to keep proprietary financial and technical information off the section 122 public register.
- The Secretary of State omits specific details from the public register because disclosure might increase the risk of damage to the environment.
- A company is notified that information provided by another party affects their business and is given the opportunity to object before it is published.
- A company whose commercial confidentiality exclusion is approaching the four-year expiry mark submits a fresh application to keep the information hidden.
What this section does not say
- Withholding basic details like applicant names, organism descriptions, or environmental risk assessment results (these must be published under subsection 7).
- General duty to maintain public registers of genetically modified organisms (governed by section 122).
- Powers of inspectors to enter premises or gather information (governed by sections 115 and 116).
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This page reproduces the text of EPA 1990 s. 123 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.