Excluding confidential data from registers EPA 1990 s. 22
Under EPA 1990 s. 22, authorities have fourteen days to decide on commercial confidentiality. Excluded info remains private for four years unless extended.
No information relating to the affairs of any individual or business shall be included in a register maintained under section 20 above, without the consent of that individual or the person for the time being carrying on that business, if and so long as the information— is, in relation to him, commercially confidential; and is not required to be included in the register in pursuance of directions under subsection (7) below; but information is not commercially confidential for the purposes of this section unless it is determined under this section to be so by the enforcing authority or, on appeal, by the Secretary of State. Where information is furnished to an enforcing authority for the purpose of— an application for an authorisation or for the variation of an authorisation; complying with any condition of an authorisation; or complying with a notice under section 19(2) above; then, if the person furnishing it applies to the authority to have the information excluded from the register on the ground that it is commercially confidential (as regards himself or another person), the authority shall determine whether the information is or is not commercially confidential. A determination under subsection (2) above must be made within the period of fourteen days beginning with the date of the application and if the enforcing authority fails to make a determination within that period it shall be treated as having determined that the information is commercially confidential. Where it appears to an enforcing authority that any information (other than information furnished in circumstances within subsection (2) above) which has been obtained by the authority under or by virtue of any provision of this Part might be commercially confidential, the authority shall— give to the person to whom or whose business it relates notice that that information is required to be included in the register unless excluded under this section; 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 authority for the purpose of justifying any such objection; and, if any representations are made, the enforcing authority shall, having taken the representations into account, determine whether the information is or is not commercially confidential. Where, under subsection (2) or (4) above, an authority determines that information is not commercially confidential— the information shall not be entered in the register until the end of the period of twenty-one days beginning with the date on which the determination is notified to the person concerned; that person may appeal to the Secretary of State against the decision; and, where an appeal is brought in respect of any information, the information shall not be entered in the register until the end of the period of seven days following the day on which the appeal is finally determined or withdrawn . Subsections (5) and (10) of section 15 above shall apply in relation to an appeal under subsection (5) above as they apply in relation to an appeal under that section, but— subsection (5) of that section shall have effect for the purposes of this subsection with the substitution for the words from “(which may” onwards of the words “(which must be held in private)”; and subsection (5) above is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc ). The Secretary of State may give to the enforcing authorities directions as to specified information, or descriptions of information, which the public interest requires to be included in registers maintained under section 20 above notwithstanding that the information may be commercially confidential. Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this section at the expiry of the period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the authority shall determine whether or not that is the case. Subsections (5) and (6) above shall apply in relation to a determination under subsection (8) above as they apply in relation to a determination under subsection (2) or (4) above. The Secretary of State may, by order, substitute for the period for the time being specified in subsection (3) above such other period as he considers appropriate. Information is, for the purposes of any determination under this section, commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person.
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 22 prevents commercially confidential information from being placed on public registers maintained under section 20. Information is commercially confidential if including it on the register would unreasonably prejudice the commercial interests of the person or business concerned.
When an application to exclude information is submitted, the enforcing authority must determine within fourteen days whether the information is commercially confidential. If the authority fails to make a decision within fourteen days, the information is treated as commercially confidential. If the authority determines that the information is not confidential, it cannot enter the information on the register for twenty-one days, allowing time for an appeal to the Secretary of State.
Information excluded from a public register remains excluded for four years from the date of determination. The person who provided the information may apply to the enforcing authority before the four years expire to request that the information remain excluded.
When it applies
- A factory operator applies for environmental authorisation and asks to keep proprietary trade processes off the public register.
- An enforcing authority obtains business financial details during an investigation and gives the company an opportunity to object before publishing.
- A company appeals to the Secretary of State after an authority decides that its production figures are not commercially confidential.
- A plant manager applies to extend an existing confidentiality exclusion as the four year period comes to an end.
What this section does not say
- Excluding information from public registers on national security grounds, which is governed by section 21.
- General requirements and contents of environmental public registers, which are governed by section 20.
- Statutory notices used by authorities to demand information from operators, which are governed by section 19.
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This page reproduces the text of EPA 1990 s. 22 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.