David Tarsh v The Information Commissioner & Anor
NCN: [2026] UKFTT 00619 (GRC)
Case Reference: FT/EA/2025/0041
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Heard by CVP: 18 September 2025
Deliberation: 13 March 2026
Decision given on: 23 April 2026
Before
TRIBUNAL MEMBER PALMER-DUNK
TRIBUNAL MEMBER YATES
Between
DAVID TARSH
Appellant
and
THE INFORMATION COMMISSIONER
TRANSPORT FOR LONDON
Respondents
Representation:
For the Appellant: Unrepresented
For the First Respondent: ICO Legal Service/did not attend at the hearing
For the Second Respondent: Peter Lockley, Counsel
Decision: The appeal is DISMISSED in part and ALLOWED in part.
The First Respondent’s decision that the withheld information is responsive to part 5 of the request for information made by the Appellant of the Second Respondent on 30 December 2023 is an error. The withheld information is not so responsive. The Appellant is not entitled to disclosure of that information under the Environmental Information Regulations 2004.
The Appellant is entitled to disclosure by the Second Respondent under the Environmental Information Regulations 2004 of Slides 62 – 73 of the RUC Future Executive Steering Group Agenda and pack v3 300421 dated 30 April 2021.
Substituted Decision Notice: within 35 days of the date of promulgation of this decision, Transport for London must disclose to the Appellant under the Environmental Information Regulations 2004, Slides 62 – 73 of the RUC Future Executive Steering Group Agenda and pack v3 300421 dated 30 April 2021.
Prohibition on the use of material filed during the proceedings: In the course of this appeal, and in response to directions issued by the Tribunal, TfL filed further information with the Tribunal, copied to the parties (“the Further Information”). Save for that information in the Further Information which we have decided should be disclosed under EIR, as set out in the Substituted Decision Notice herein, the Appellant and the First Respondent remain under an obligation only to use the balance of the Further Information for the purposes of the litigation. They are not permitted to publish or disseminate it or rely on it for any other purpose: DVLA v Information Commissioner and Williams (Rule 14 Order): [2020] UKUT 310 (AAC).
REASONS
Introduction
This is an appeal under the Environmental Information Regulations (“EIR”) 2004 against Decision Notice referenced IC325631-L8R8 dated 3 January 2025. References to a “Regulation” in this decision are to a Regulation of EIR.
The Appellant requested information from Transport for London (“TfL”) in relation to a number of matters concerning preparations by TfL for the expiry in 2026 of contracts relating to the road user charging schemes operated by TfL across London.
TfL withheld certain information (“the withheld information”) in reliance on Regulation 12(5)(d) (confidentiality of proceedings).
By the Decision Notice, the First Respondent (“the Commissioner”) decided that TfL was entitled to withhold the requested information pursuant to Regulation 12(5)(d) (confidentiality of proceedings).
On appeal, TfL continues to rely on Regulation 12(5)(d) to withhold the requested information and, additionally, seeks to rely on the following exceptions from disclosure:
Regulation 12(4)(e) (internal communications)
Regulation 12(5)(b) (the course of justice)
Regulation 12(5)(e) (commercial information).
The Tribunal’s decision is unanimous.
The Tribunal has issued an OPEN decision of 48 pages, and a CLOSED decision of 52 pages addressing the withheld information, reference to which in the OPEN decision would defeat the purpose of this appeal.
Background
By its witness evidence, TfL has explained the following matters. We set them out as background and do not understand them to be in dispute.
TfL operates the following road user charging schemes: the Ultra Low Emission Zone (“ULEZ”), the Low Emission Zone (“LEZ”) and Congestion Charge (“CC”) (together, the “Road User Charging Schemes” or “RUC Schemes”).
TfL has historically had three service contracts for RUC: Detection and Enforcement Infrastructure, (“D&EI”), Business Operations (“BOps”) and Enforcement Operations (“EOps”).
BOps consists of a set of IT systems, including processing images received from the D&EI, matching images against relevant records, automated billing and provision of relevant web services. These contracts were originally signed in September 2016 and were due to expire in September 2026.
Between 2021 and March 2022, TfL considered whether to bring BOps in-house after contract expiry in 2026 (“Project Detroit”). It was assumed that even if BOps were brought in-house, EOps and D&EI would be re-procured.
Decision-making about BOps also interacted with decision-making about the build of a BOps system for the Silvertown and Blackwall Tunnel User Charging (“TUC”) scheme, and the planned expansion of the ULEZ.
The decision to progress these matters needed to be approved by TfL's Programmes and Investment Committee (“the PIC”). It was considered by the PIC at a meeting on 2 March 2022, under Agenda item 20. The PIC received an open paper, which has been disclosed to the Appellant, and a further paper marked as to be considered in private (“the Exempt Paper”) which TfL seeks to withhold. It is information in that paper which lies at the heart of this appeal (“the withheld information”).
The Request
On 30 December 2023, the Appellant made the following request of TfL (“the Request”). We have included in our quotation of the Request, the answers which TfL supplied on 23 February 2024:
What is the current annual cost of the contract that Detroit will replace?
The current contract combines both the system and service. Project Detroit will replace the systems element once the current contract expires. A separate procurement will be used to secure a supplier for a new service-based contract. TfL is not billed separately for the system and service elements of the current contract, however, it is estimated that the total annual cost for the system that Project Detroit will replace is approximately £8m.
Have attempts been made to negotiate a renewal price of that contract?
No attempts been made to negotiate a renewal price of the existing contract. TfL is building a new core technology platform for road user charging to replace the currently outsourced system, so a renewal of the existing contract has not been sought.
If they have, what is the quoted price to keep it running? Not applicable (see 2 above).
If attempts have not been made, why haven’t they?
Assuming a formal decision has been made not to renew or seek to renew the contract in 2026, please provide a copy of the official record of that decision and of the internal documents that recommended not renewing and explaining the rationale for that decision.
Attempts have not been made because the current service contracts which support the delivery of Road User Charging (RUC) Operations expire in September 2026 and TfL is preparing to procure replacement contracts for the services which will support RUC operations after they expire.
[6.] On Detroit how much of the total resource (in terms of cash (£ and %) and headcount (£, numbers of staff and %) and physical infrastructure (£ and %)) is dedicated to the pay per mile element of the project?
No resource, headcount or physical infrastructure on Project Detroit is dedicated to pay-per mile. The scope of the project is to replicate the capability of the existing charging systems which support the business operation of the Congestion Charge, the Low Emission Zone (LEZ), the Ultra Low Emission Zone (ULEZ), Direct Vision Standard and, from 2025, charges for the use of the Silvertown and Blackwall tunnels. TfL teams are not undertaking any work on pay-per- mile road user charging schemes. As has been explained previously, pay-per-mile charging has been ruled out by the Mayor and no such scheme is on the table.”
On 23 February 2024, the Appellant asked TfL this in relation to their response to his fifth question of 30 December 2023:
“If an existing supplier is not asked to provide a quote to continue, which would be unusual, particularly if it has built the relevant infrastructure, there must be a record of the decision and I am looking for the official record of that decision and the rationale for it. I refuse to believe that in taking such a decision, there is no official record nor is there a written recommendation and rationale justifying why it would be better to develop in house than continue with the existing supplier.”
TfL conducted an internal review.
On 10 May 2024, TfL responded to the Appellant, stating that it held one document in scope of the Request: “I can confirm that there is no ‘official record of that decision’ but the matter was considered within a closed (non-public) meeting of the Programmes and Investment Committee and Agenda Item 20 sets out the detailed rationale behind the decision, for their attention and consideration, with The Committee asked to approve the paper at this time. It is this document which we consider is met by the parameters of your request.”
TfL went on to explain that the information within Agenda 20 was “exempt from publication to the public or press by virtue of paragraphs 3 and 5 of Schedule 12A of the Local Government Act 1972 as it contains information relating to the business affairs of TfL and legally privileged advice.” TfL concluded that the information was exempt from disclosure pursuant to Regulation 12(5)(d) EIR.
TfL justified reliance on Regulation 12(5)(d) EIR as follows:
The proceedings in question were the PIC meeting. In this case, the information within those proceedings related to TfL seeking approval from the PIC of plans to take ownership of the core road user charging systems by building an in-house BOPs ahead of the contract re-let in 2026.
Disclosure of the material would usurp the confidentiality provided for in the Local Government Act 1972. The rationale behind the ability to exclude the public from the consideration of certain business at these meetings in these circumstances is so that legal advice can be shared confidentially in order to make lawful decisions and so that commercially sensitive financial information can be viewed by Committee members to help inform their decision making. Inevitably, disclosure of the information would adversely affect this confidentiality.
The balance of the public interest favoured reliance on Regulation 12(5)(d) EIR to ensure that such proceedings were able to continue in a manner that ensures TfL’s decision making with regards to use of public funds is able to be as robust as possible which allows for the best possible decision making for the greater public benefit.
On 17 July 2024, the Appellant indicated to TfL that he would be content for any legal advice to be excluded.
On 8 August 2024, TfL stated that the Exempt Paper had not been withheld on the basis of legal privilege alone, and that it was withheld pursuant to Regulation 12(5)(d) EIR.
On 22 July 2024, the Appellant complained to the Commissioner.
The Commissioner investigated.
The Decision Notice
By the Decision Notice, the Commissioner decided, in summary, that:
The requested information is information on a measure affecting the elements of the environment, and, therefore, falls to be considered under EIR.
Section 100A of the Local Government Act 1972 (“the LGA”) allows a “principal council” to exclude the general public from meetings at which it intends to discuss “exempt information.” Section 100E of the LGA extends the same protection to committees and sub-committees of a principal council. Section 100J of the LGA further extends this protection to meetings of a public authority, its committees and sub-committees.
The document in question was considered at a meeting of the PIC and the part of that meeting during which the document was discussed was closed to the public by virtue of section 100A of the LGA.
The Commissioner does not need to determine whether the information in question met the LGA definition of “exempt information” (although he has no reason to believe it did not). The focus of this exception is on the proceedings, not the information. The proceedings were conducted in private.
As the proceedings were closed to the public by virtue of section 100A of the LGA, the Commissioner is satisfied that they were subject to a duty of confidence provided for by law.
As to whether disclosure of the withheld information would have an adverse effect on the confidentiality of the proceedings, while it is correct that the document does not record the PIC’s deliberations in those proceedings, the Commissioner nevertheless considers that its disclosure would adversely affect their confidentiality.
The document was not an ancillary piece of information. It was key to this part of the PIC meeting and would have formed the central theme of any discussions that followed. The document could not be disclosed without giving a detailed insight into the proceedings, seriously compromising their confidential nature. Disclosure would therefore adversely affect the confidentiality of the proceedings.
In relation to the public interest test: even where disclosure would adversely affect the confidentiality of proceedings, the information must still be disclosed unless the balance of the public interest favours maintaining the exception. The public authority must also apply a presumption in favour of disclosure.
The Appellant was concerned that the system underpinning RUC in London could be easily adapted to allow the public authority to adopt other charging systems, such as a pay-per-mile system throughout London’s road network; his particular interest was to establish what further uses the public authority had in mind for this system.
TfL considered that it was important that it had a safe space in which to discuss procurement decisions. Those decisions needed to be based on a thorough and candid assessment of the potential risks. Disclosing the information would lead to a lower degree of candour and therefore poorer decision-making.
The Commissioner had challenged the public authority to explain why a meeting, held more than two years prior to the Request and discussing work that, in some instances, appeared to be underway or even complete, still needed to be kept confidential. TfL had explained to the Commissioner why the withheld information remains relevant today and why the confidentiality of the PIC meeting should still be preserved.
The Commissioner accepted TfL's arguments but was unable to reproduce them in the Decision Notice without effectively disclosing the withheld information. The Commissioner had seen no reference within the withheld information to any future scheme beyond those that TfL is already known to operate (or is known to be introducing).
The Commissioner recognised that the PIC meeting was held some time ago and that the public interest in preserving its confidentiality would not remain high indefinitely.
The Commissioner was satisfied that, at the point when TfL responded to the Request, even bearing in mind the presumption in favour of disclosure, the balance of the public interest favoured maintaining the exception.
The Appeal
By a Notice of Appeal dated 31 January 2025, the Appellant submits, in summary, as follows:
The Appellant wishes to have sight of the document which sheds light on why TfL decided not to seek a rebid on the cost of running its existing RUCs and instead spend several times as much money building its own systems in-house.
There must be an exceptionally high degree of public interest in this decision for the following reasons:
The exceptionally high cost and risk of building systems in-house. By way of example, the government had wasted hundreds of millions on an undeliverable NHS project; so, could TfL be at risk of doing the same?
A decision not to seek bids from proven systems providers or a rebid from the current provider, means that there could be suspicion of maladministration, or commercial incompetence, or potential impropriety or something else improper taking place
The huge amount extra in expenditure of taxpayers’ money, over “£100m vs £6m/yr”.
Suspicion that the system would be used to introduce a politically unpopular pay-per-mile scheme
Potential privacy implications, “as people’s whereabouts need to be tracked”.
Risks to public safety, general commerce, local mobility, national security et cetera should things go wrong
The public interest in disclosure is so high that it is hard to imagine scenarios in which there is a higher public interest in non-disclosure.
The document sought by the Appellant was prepared in advance of the proceedings at which it was discussed; the Appellant has not sought any information on the proceedings so it is hard to imagine how disclosing a document prepared in advance of confidential proceedings would reveal much about the subsequent proceedings
The Commissioner own guidance provides for disclosure when there is a suspicion of maladministration, as is clearly the case here.
It could have been possible, with the use of redaction, to provide the document in a manner which explained why TfL was spending so much public money on an in-house system and not seeking commercial bids.
the Appellant suspected that TfL did not want to disclose the requested information because it was covering up the creation of a pay-per-mile capability. The Commissioner did not find evidence of that but that should have triggered an additional line of inquiry, namely why TfL was going to the expense of building an in-house system when it could seek to procure ongoing use of the existing system.
By the time this appeal is decided, so much time will have passed that any possible reasons for not disclosing the requested information will have been legitimately eroded by the passage of time.
By a Response to the Appeal dated 7 April 2025, the Commissioner submits, in summary, as follows:
The time at which to consider the application of the EIR exceptions, including Regulation 12(5)(d) and the public interest test is the date of the public authority’s response, or, if it responded late, 20 working days “after the date of receipt of the request" (Regulation 5(2) EIR). In this case the relevant date for consideration is 30 January 2024.
“Proceedings” for the purposes of Regulation 12(5)(d) EIR will not cover any meeting held by a public authority. In this case the PIC meets quarterly, and its meetings are open to the public and are live streamed on TfL's YouTube channel. Further, the minutes of the PIC's open meetings are published. It is only where exempt information is being discussed that the public are excluded from the meeting and there are no separate minutes of the closed session. The PIC meeting relating to the Agenda 20 item represented proceedings for the purposes of Regulation 12(5)(EIR).
The LGA creates a statutory basis for regarding the proceedings as confidential.
Although the withheld information was prepared in advance of the PIC meeting, it could not be disclosed without giving a detailed insight into the proceedings, thus compromising their confidential nature.
It was not possible to disclose a redacted copy of the withheld information as at 30 January 2024.
In relation to the public interest:
It is not clear to the Commissioner, having viewed the withheld information, how its disclosure could address any public concerns about privacy, public safety, local mobility and national security.
Conversely, TfL had submitted to the Commissioner that: “…it is difficult to establish to what extent disclosure of this specific information would further the applicant or the general public's wider understanding of the decision or what specific public interest is being met by disclosure of this information that would sufficiently override the comprehensive and clear public interest in maintaining the confidentiality of these proceedings, which ensures our decision making remains robust and for the public good.”
The Appellant has neither particularised nor evidenced any relevant suspicion of wrongdoing or maladministration in his grounds of appeal.
TfL had identified the right balance between publishing information about Project Detroit and its decision not to seek to renew the current contract for systems that support RUC and withholding from the public the detailed and more granular information contained in the Agenda Item under Regulation 12(5)(d).
TfL place relevant information in the public domain:
TfL publishes a quarterly 'investment programme report' on its website to enable the public to review and consider the status of current and future investment programmes.
The minutes of the PIC’s discussion of the Agenda Item and the decision they made after that discussion are published on TfL’s website
It is public knowledge that TfL intend to build the new technology platform, and it has been explained several times that this is due to the expiry of the existing contracts which cannot be renewed.
TfL had explained to the Commissioner: “Given the synergy between the different contracts, our integrated approach seeks to reduce costs, drive inefficiencies across resourcing, requirements, delivery and operations, and importantly benefit the customer. This is the reason for the decision, and this is something that has been explained to the public through various means including media statements, FOI requests and answers to Mayor's Questions put to the Mayor of London.”
The Commissioner had properly identified, evaluated and weighed each of the public interest factors relied upon by the Appellant and TfL.
The appeal should be dismissed.
By a Response to the Appeal dated 7 April 2025, TfL submits that it relies on the following exceptions under EIR:
Regulation 12(4)(e) (internal communications)
Regulation 12(5)(b) (course of justice)
Regulation 12(5)(d) (confidentiality of proceedings)
Regulation 12(5)(e) (commercial information)
In relation to Regulation 12(4)(e), TfL submits that the withheld information was communicated from officers to the PIC internally, and accordingly engages the Internal Communications Exception.
In relation to Regulation 12(5)(b), TfL submits that the parts of the withheld information which formed the basis for protection from disclosure under Paragraph 5 of Schedule 12A 1972 are legally privileged and disclosure of such information would adversely affect the course of justice.
In relation to Regulation 12(5)(d), TfL submits, in summary:
These were formal proceedings of the PIC, and the part of the meeting at which the Exempt Paper was considered was confidential as provided by law, namely the LGA 1972. 37.
It is, moreover, beyond dispute that disclosure would adversely affect the confidentiality of those proceedings.
The Appellant’s suggestion that disclosure would not adversely affect the confidentiality of the proceedings because the Request relates to a document “prepared in advance” of the proceedings, is without merit: the document was itself part of the proceedings.
In relation to Regulation 12(5)(e), TfL submits:
The withheld information is commercial in nature.
The withheld information is subject to confidentiality provided by law: there is specific legal protection for “information relating to the financial or business affairs” of TfL under Paragraph 3 of Schedule 12A LGA 1972.
The confidentiality protects a legitimate economic interest, namely TfL’s legitimate economic interest in retaining or improving its market position vis-à-vis its suppliers, and/or protecting its commercial bargaining position in the context of negotiations with suppliers.
Disclosure would adversely affect the confidentiality in the information.
In relation to the public interest, TfL offers some general principles:
The Tribunal must consider whether “in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.” (Regulation 12(1)(b).
On an appeal under the EIR, the public interests in multiple exceptions fall to be aggregated for the purposes of considering the public interest balance (Ofcom v IC [2011] PTSR 1676).
The relevant time for assessing the public interest balance is the time of the public authority’s response to the Request (in this case, February 2024) (Montague v Information Commissioner and the Department of International Trade [2022] UKUT 104 (AAC)).
There is a presumption in favour of disclosure under Regulation 2(2).
In this case, the public interest balance favours maintaining the exception from disclosure. In view of the nature of the withheld information and the wider circumstances of TfL’s decision-making, the public interests in maintaining the exception are of substantial weight, while the public interests in disclosure weigh less heavily in the balance.
In relation to the public interest against disclosure in the context of Regulation 12(4)(e), TfL submits the prejudice that can be relied upon extends to “anything which would or might result in the policy being formulated less efficiently or less well. It could include anything tending to result in the policy makers having to pay undue regard to matters not directly related to the merits of the policy arguments. Further, it could extend to matters other than disruption of the process of formulating policy: Amin v IC [2015] UKUT 527 (AAC) at [102]-[112].” TfL submits that (even apart from the legal protections for confidentiality in this case), disclosure would have encroached in the PIC’s private space for important decision-making while issues within the scope of the Exempt Paper were still “live” and would have tended to inhibit the candid consideration of the most sensitive matters in future.
In relation to the public interest against disclosure in the context of Regulation 12(5)(b), TfL refers to the fundamental requirement of the English legal system that a client has the ability to speak freely and frankly with his or her legal adviser in order to obtain appropriate legal advice and as such there is a strong general interest in the preservation of LPP.
In relation to the public interest against disclosure in the context of Regulation 12(5)(d), TfL submits:
Disclosure would adversely affect the confidentiality of the PIC’s proceedings insofar as protected by the LGA 1972, both (i) in respect of the particular meeting at which the Exempt Paper was considered, and (ii) in future.
Disclosure would, at the time of TfL’s response to the Request in 2024, have encroached on, and disrupted, a private space for strategic, legal, contractual and commercial decision-making that remained live, busy and acutely needed. Decision-making regarding Project Detroit was ongoing in February 2024. TfL began to reconsider its approach in September 2024 with a final decision being taken in January 2025. The legal protections afforded by the LGA 1972 for that private space for deliberations were, in the premises, of considerable importance.
Disclosure would also have weakened (and would weaken) the protective force and value of the confidentiality provisions of LGA 1972, in respect of future decision-making of the PIC. If members of the PIC cannot have confidence that the provisions in that Act will be effective even in a case such as this one, then that will inevitably reduce the quality of their deliberations in respect of legally and commercially sensitive matters.
There is, in addition, a freestanding “important public interest in the observance of duties of confidentiality”; hence the question for a court, when a public interest is advanced to justify a disclosure, is not merely whether “the information in question is a matter of public interest,” but “whether, having regard to the nature of the information and all the relevant circumstances, it is in the public interest that the duty of confidence should be breached:” Associated Newspapers Ltd v Prince of Wales [2008] Ch 57 at [67]-[69]. To similar effect, see Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109 at 282E-F: “the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law”.
TfL submits that the public interests in disclosure were less weighty in the circumstances than the public interests in maintaining the exceptions, for the following reasons:
While there is a public interest in accountability regarding TfL’s stewardship of public funds, that does not weigh heavily for disclosure, taking into account the following:
To promote accountability regarding these matters, TfL (i) publishes agendas to be discussed in both the open and the closed sessions of PIC meetings; (ii) publishes reports to be considered at the open sessions; (iii) publishes minutes of PIC proceedings; (iv) makes the open sessions publicly viewable online; (v) reports Committee discussions and decisions to public meetings of the full TfL Board; and (vi) produces and publishes a quarterly ‘investment programme’, so that the public can review and consider the status of current and future investment programmes.
All payments of over £250 to third-party suppliers are published on TfL’s website and they are searchable by supplier name or date, and each item of expenditure is assigned to a particular “expenditure account” (e.g. “cameras”, “staff training”, “maintenance of telecommunications equipment”). TfL also publishes aggregate figures for procurement authorities.
These processes have had the result that a significant amount of information (including financial information) about the PIC’s decision making at the March 2022 meeting is already in the public domain and otherwise subject to scrutiny.
Other information rights disclosures had revealed yet further information about TfL’s approach to and decision-making regarding Project Detroit, including information that would assist the public in scrutinising value for money. For instance, it revealed that TfL was working through Crown Commercial Services (CCS) to acquire development services, identified the CCS frameworks TfL was using, confirmed that 157 staff were time-sheeting fully to Project Detroit, that the estimated final cost was between £130m to £150m, and the spend to date was £21.0m.
The Greater London Authority has also responded to several questions on Project Detroit.
In the premises, the additional accountability that would be provided by the granular commercial information in the Exempt Paper would be very limited and is not capable of outweighing the powerful public interests in maintaining the exception.
As regards the Appellant’s suspicion of TfL’s plans for a pay per mile scheme, the withheld information discloses no such policy. Moreover, it is in any event information in the public domain that, as the Mayor of London said on 14 September 2023, “Pay-per-mile is not on the table and not on the radar.” Indeed, TfL confirmed in its response to the Appellant that “[o]n Project Detroit, no resource, headcount or physical infrastructure is dedicated to pay-per-mile”, and “TfL teams are not taking forward any work on pay-per-mile or distance-based road user charging schemes.” Accordingly, disclosure of the Disputed Information would not advance the public interest in establishing TfL’s position on pay-per-mile: it is already established.
As regards the Appellant’s contention that there could be suspicion of maladministration or other impropriety: suspicion of wrongdoing must amount to more than a mere allegation; there must be a plausible basis for the suspicion for this to have a material impact on the public interest balance. There is none in this case.
The Appellant’s assertion that by the time this appeal is decided, any possible reasons for non-disclosure will have been eroded by time is legally irrelevant. The material time at which to judge the public interest is at the time of TfL’s refusal of the Request.
The appeal should be dismissed.
The hearing
We read:
an OPEN bundle of 683 pages containing an OPEN witness statement from TfL.
A CLOSED bundle containing the withheld information, CLOSED correspondence between the Commissioner and TfL, and a CLOSED version of the witness statement from TfL referred to above.
A bundle of authorities which included relevant sections of TfL’s Standing Orders from 1 February 2022.
We heard oral opening submissions from the Appellant, in summary, as follows:
Good governance depends upon transparency and accountability. If a public body is spending public money, it must be open about what it is doing and why, to indicate competence, value for money and to justify public trust. That is a “must-have”, not a “nice-to-have". Scrutiny improves decision-making.
In this case, these principles have got lost: why did TfL abandon an open, competitive procurement for an £8 million contract to build a system in-house for £120 million? By not re-tendering, there is no basis on which to establish that the £120 million cost of Project Detroit was a sound investment.
TfL’s plans run under a cloak of secrecy, and while it says it is committed to evidence-based policy, its use of evidence is selective, misleading, presentational and publicly performative.
TfL called evidence from Ms Charlotte Edney. Ms Edney is a Lead Sponsor within the Investment Planning Directorate of TfL.
Parts of Ms Edney’s witness statement were provided to the Tribunal in CLOSED.
The Appellant cross-examined Ms Edney. Ms Edney gave her evidence with obvious care and candour. She was an impressive witness. We address Ms Edney’s evidence below.
The Tribunal sought further information and explanations from TfL in a CLOSED session.
TfL provided a written gist of the CLOSED session to the Appellant, approved by the Tribunal. The gist read as follows:
The exempt paper contains three paragraphs that present legal advice on issues of procurement and contract law that relate to the content of the paper.
The paper does not contain any details of actual contract negotiations, but it contains information relevant to negotiations that would take place, given that the paper is seeking procurement authority to enter into such negotiations.
The Tribunal asked TfL whether a further summary of the exempt paper could be provided, while recognising that this would probably not provide the detail Mr Tarsh was looking for. TfL’s position was that it had already taken a decision, pursuant to Part VA LGA 1972, about what information could be disclosed, and had included as much information as possible in the open paper for the meeting and the minutes of the meeting. In responding to the Request, it continued to rely on that protection, and so any further summary would, in the circumstances of this case, undermine the confidentiality of proceedings for which Part VA LGA provides.
The Tribunal questioned TfL on whether it held more information in scope of the request. Ms Edney confirmed that preparatory work had taken place in 2021 (as referred to in paragraph 20 of TfL’s skeleton argument), but that the Exempt Paper contained the recommendation, and the rationale for it, to the body with formal authority to approve Project Detroit, and that it was therefore the only paper within scope of the request. As to the ‘official record’ of the decision, TfL accepted that the relevant part of the minutes of the PIC meeting on 2 March 2022 would be within scope of that part of the Request. Those are, however, public, and are contained in the Open Bundle.”
Counsel for TfL made oral submissions, reflective of TfL’s Response to the appeal.
The Appellant then made oral submissions by reference to individual paragraphs of TfL’s skeleton argument, and a final closing statement, the latter of which we summarise as follows: the appeal raises issues of principle and trust; the systems in question affect our freedoms; TfL is exceeding its democratic mandate; transparency is essential, not just morally but demanded by the law and EIR are there to underline that; scrutiny comes with the privilege of public service.
The hearing lasted a whole day.
After the hearing, the Tribunal directed TfL to provide further information, if necessary, on a CLOSED basis. In the event, TfL elected to provide the further information on an OPEN basis. We address that further information below.
TfL’s evidence
At the time of making her witness statement, 27 June 2025, Ms Edney had been in the role of Lead Sponsor within the Investment Planning Directorate of TfL for over six years. Prior to that, Ms Edney worked as a Portfolio Sponsor in the Investment Planning Directorate of TfL for four years and a Principal Sponsor for two years. Ms Edney says that she has extensive experience sponsoring large projects and programmes within TfL, including the necessary governance and decision-making processes to be followed. In her role as Lead Sponsor for RUC, Ms Edney has been involved in seven submissions to the PIC.
By the OPEN parts of her witness statement, Ms Edney explains that historically, the operating model for RUC schemes has comprised three service contracts, D&EI, BOps, and EOps. All three contracts were signed in September 2016 and are due to expire in September 2026. TfL needed to decide whether to build the BOps system for the Silvertown and Blackwall Tunnel user charging scheme (“TUC”) or to outsource it, and whether to in-house or outsource the BOps system for the London-wide expansion of ULEZ. There was a need to consider whether, from the perspective of cost, delivery and strategic fit, a decision to in-house BOps for RUC in 2026 would strengthen or weaken the case for in-housing BOps for TUC schemes in 2024, and/or ULEZ Expansion in 2023.
Ms Edney explains that progressing this work would cost a significant amount of money. It required a formal decision of PIC. The Exempt Paper sought the PIC’s approval for specific proposals which Ms Edney explains in CLOSED. Although TfL’s decision-making on these matters was highly inter-connected, the decisions the PIC was making at this meeting related to processes that would extend well beyond 2024: setting the longer-term strategy for road user charging and its operational model.
At the PIC meeting on 2 March 2022, TfL sought three procurement authorities, which Ms Edney identifies, and we summarise, in CLOSED.
Ms Edney explains her understanding of the process of submission of papers to the PIC: a draft of the papers is sent to a circulation list which includes TfL’s General Counsel, who signs off the drafts, including the designation of parts of the materials for the PIC which are exempt from publication by virtue of the Local Government Act 1972. The meeting on 2 March 2022 did not have quorate attendance and the procurement authorities were subsequently approved by the Chair of PIC using a procedure referred to as “Chair’s action” as provided for in TfL’s Standing Orders.
Ms Edney explains that the necessary PIC approvals were secured in early 2022 allowing a procurement process to commence using the Crown Commercial and Customer Relationship Management Frameworks, with external specialist staff starting to on-board from late 2022. On 4 March 2022, the Mayor of London confirmed the proposal to proceed with the London wide expansion of ULEZ and a public consultation was held between 20 May and 29 July 2022. Due to timescales to implement the scheme, some work started at risk (such as ordering cameras due to long-lead times), using lessons from the previous ULEZ expansion completed in 2021.
Ms Edney explains that the intention to deliver TUC in-house became unviable in late 2022 due to the complexity and timescales for recruiting the necessary resource to commence development of the system. As a result, in September 2022 a submission was made to PIC to request approval for the necessary procurement authority for Capita to implement changes required to the existing BOps system needed to deliver TUC. This submission also requested further procurement authority with Capita to deliver London-wide ULEZ expansion.
Ms Edney explains that a final decision not to proceed with Project Detroit was made in January 2025. A publicly available paper was placed before the PIC on 5 March 2025, which said this:
Although the project had been progressing well during 2024, it was significantly impacted by the cyber incident in September 2024 which limited system access and therefore development work. Delivery timescales for the BOps system being built in-house had aligned with those for the RUC Re-let project, as critical activities for integration and testing of the system could only take place once the new suppliers were appointed.
Given the RUC Re-Let prolongation, the estimated cost to deliver the project increased substantially, which, considering TfL’s wider financial context, resulted in a review of delivery options for the BOps system. Details of this review are outlined in the paper on Part 2 of the agenda and concluded with the decision in January 2025 to revert to an outsourced solution for provision of the BOps system.”
Ms Edney addresses the Appellant’s concerns as to the introduction of a pay-per-mile scheme. Ms Edney confirms that the Exempt Paper does not show that TfL was planning to use the in-house BOps system for distance-based charging. Ms Edney explains by reference to material published at the time, that as at March 2022, TfL officials had been asked to undertake work examining the option of pay-per-mile but that it was not the case that the Mayor had made any decision as to the introduction of any such scheme in future.
Ms Edney addresses the impact of disclosure on TfL’s decision-making. Ms Edney explains that at the time of the Request, some aspects of the projects discussed in Agenda Item 20 in 2022 had now moved on, in particular because the ULEZ expansion had then been delivered. However, decision-making about some aspects was still live: TUC was in the course of being delivered with a target go-live date of March 2025; work on the RUC re-let and in-house BOps system was ongoing, with a revised go-live date of September 2026, when the existing Capita and Siemens contracts were due to expire. Decisions with the PIC at that time were for approval of necessary authorities needed to continue the projects to the planned delivery approaches and timescales. We address Ms Edney’s evidence on the impacts of disclosure of the withheld information in our analysis below.
Ms Edney explains that when drafting papers, effort is made to include all necessary narrative in the public part of the submission, enabling informed decision making, with a minimal amount of sensitive information and supportive narrative in the private paper. Ms Edney believes that the ability for the PIC to discuss sensitive matters in the private part of the meeting allows for an open and detailed discussion of issues and challenges that would not be appropriate in a public setting. Ms Edney explains that project teams rely on the protections afforded by the LGA to ensure that the papers submitted to PIC on commercially sensitive matters contain a full, frank and unvarnished account of the relevant considerations. Ms Edney says:
“On the basis of my experience of working on papers to be submitted to PIC, I assess that, if Agenda Item 20 had been disclosed in February 2024, then this would have deterred officials in future from being as full, frank and unvarnished in future papers to PIC. If we generally had to disclose exempt papers following information requests in similar circumstances to these, then that effect would have been all the stronger. I think that, realistically, officials would couch the papers in more ‘vanilla’ language. For example, rather than being granular and frank with the PIC about which options were under consideration and what the risks and opportunities were in respect of these options, officials would make more general statements about various options being considered. I also believe that the papers submitted for PIC meetings, and the meetings themselves, would become more performative, and information would be exchanged more by way of informal briefing.”
By her witness statement, Ms Edney addresses TfL’s consideration of whether TfL’s concerns could have been addressed by only disclosing those parts of the Exempt Paper which were on the lower end of commercial sensitivity in February 2024. Ms Edney explains her belief that this still would have had a significant deterrent effect on the provision of full, frank and unvarnished advice to the PIC, due to several features of the PIC’s decision-making, as follows:
Commercially sensitive information that goes before the PIC in private proceedings is often closely bound up with information that is sensitive for other, non-commercial reasons. Those drafting papers for PIC therefore rely on the privacy of the proceedings overall in order to give full and frank advice on the range of factors the PIC will need to take into account, and PIC members rely on the privacy of the proceedings overall to discuss that full range of matters. For example, frank discussion of sensitive issues can be required. We might advise that the financial case for a particular option or scheme depended on the level of stakeholder support or buy-in for that scheme, and give advice in relation to that (for example, if the financial case turned on an expectation of future funding or reimbursement from City Hall). Though the public parts of PIC papers are cleared by the Mayor's Office, there is not the same level of review for sensitivity or communications risk in relation to exempt papers, as those papers have to give a full and unvarnished account of the facts to ensure that PIC has the full picture.
That means that we cannot realistically say, at any point in time, that the overall sensitivity of the commentary in an exempt paper has dissipated, even if the immediate commercial sensitivity of that information is less than it was at the time the paper was drafted. The risks and considerations discussed in that commentary and advice might not be sensitive at the time that question is asked, but they may then become sensitive. Therefore, I do not think that it would be a significant reassurance, to PIC or those advising PIC, to be told that information in exempt papers was only likely to be disclosed under the information rights legislation if that disclosure would not have an immediate adverse impact on ongoing commercial negotiations. This is one reason why the confidentiality of PIC's confidential proceedings needs to be preserved, and not just the confidentiality of the commercial information discussed in those proceedings so far as it remains commercially sensitive.
It should also be noted that the commercial sensitivity of information can wax and wane over time. For example, if comments are made about a particular supplier’s performance, then those might be sensitive when they are made (because the contract is ongoing), less sensitive a year later (because the contract has been performed), but more sensitive a year later than that (because a further contract has by that time been concluded with the same supplier). That is not uncommon at TfL. For those reasons, again, it would not be a significant reassurance to those drafting private PIC papers if they thought that, at some future point in time, TfL’s decision on whether to disclose the paper following an information rights request would have to be based on the commercial sensitivity of the information alone.
Another reason that this would not provide adequate reassurance is that commercial sensitivity is somewhat subjective. There is no prescriptive set of rules about what is sensitive and what is not: reasonable people can disagree about this, and we make decisions about what is sensitive based on our commercial instincts, experience of what has been considered sensitive before as well as an understanding of the market and what information might advantage (or disadvantage) a particular actor in that market. Because we are keen to keep as much information in the public papers as possible, in order to facilitate transparency and public scrutiny so far as possible, there is often considerable discussion internally about these issues. That again means that, in practice, it is not going to be precisely foreseeable to the official who is drafting an exempt PIC paper what information might be considered commercially (or otherwise) sensitive to a future official that is considering whether to disclose that exempt PIC paper at a later point in time, in response to an information request or otherwise. The risk that something rightly considered sensitive by the author is wrongly considered nonsensitive by an official later in time is exacerbated by the fact that there is a reasonable degree of churn on project teams. It follows that, the less that officials drafting these papers can rely on the legal protections for private PIC proceedings that exist under legislation, the more they will need to ‘blur out’ the most potentially sensitive details when drafting private PIC papers, reducing the quality of PIC’s decision-making.
Ultimately, for all these reasons, it is the confidentiality of the proceedings themselves that enables the PIC to operate effectively in its private proceedings, and not just the confidentiality of specifically commercially sensitive information in the proceedings.”
Ms Edney points to other means of providing transparency and accountability, describing substantial information in the public domain about decisions made by the PIC on 2 March 2022:
The publicly available paper on the Air Quality and Environment Programme for the PIC meeting of 2 March 2022:
Stated that the PIC was being asked to “approve additional Procurement Authority, in the sums requested in the exempt supplementary paper on Part 2 of the agenda, to extend the contracts with Capita Business Services Limited and Siemens Mobility Limited to continue activities in support of road user charging” and “approve Procurement Authority, in the sums requested in the exempt supplementary paper on Part 2 of the agenda, to commence contracts with third party suppliers to enable activities in support of road user charging”.
Provided key narrative for RUC, focusing on confirmed scope and publicly announced areas TfL would be investigating in 2022. This provided the high-level outcomes TfL intended to pursue in 2022/23, with the commercial options to achieve such activities considered in the private paper.
Did not include the value of procurement authority sought.
TfL also published minutes of the PIC’s decisions at the 2 March 2022 meeting recording: the decision to exclude the press and the public from consideration of the Exempt Paper; and the PIC’s decision to approve the procurement authority sought in the sums requested to commence contracts with third party suppliers to enable activities in support of road user charging.
On 20 July 2022, TfL published a further paper to the PIC on road user charging, summarising the developments since the last report to the PIC in March 2022, and stating that: activities for the re-let of the RUC service contracts were continuing ahead of their expiry in September 2026, with the BOps system now endorsed for delivery in-house; and that the project was closely aligned with the future RUC and BOps in-house projects to accurately inform requirements for the re-let procurement activities and coordinate timescales to ensure a seamless transition in services.
TfL published a further paper for the PIC meeting on 1 March 2023, which stated that:
“Endorsement was given by the Committee on 2 March 2022 for delivery of the BOps system in-house. The original proposal had been to align delivery with TUC in 2024, although this was time sensitive and dependent upon securing approval to on-board sufficient technical resource. The submission to the Committee via Chair’s Action in September 2022 noted that delays in securing the required resource meant that the delivery of BOps in-house was no longer viable for 2024. Timescales have since been reviewed to target the RUC Re-Let project for September 2026. Securing external technical resource via the framework approach outlined in the Chair’s Action paper to the Committee in September 2022 has enabled the onboarding of resources as necessary.”
“BOps system in-house: Specialist technical resources are continuing to be onboarded using the CCS frameworks, supporting key activities focused on BOps system design, build and integration. Further onboarding of technical resource is planned throughout 2023/24 to continue to continue support of these activities. The project remains closely aligned to the Re-Let and potential Future RUC projects to ensure coordination of developing assumptions and requirements.”
“The complex inter-dependencies between RUC schemes have increased since the introduction of additional projects in early 2022. Most notably the full impact Future RUC will have on the BOps in-house and Re-Let projects is still being assessed. While BOps in-house and the Re-Let have more certainty, Future RUC is significant and uncertain; therefore, we will work to assumptions but must prepare for all eventualities. Project teams are working closely together to identify and manage overlaps, particularly for requirements and timescales, with opportunities for efficiencies being explored along with minimising of delivery risks.”
Matters arising after the hearing on 18 September 2025
In deliberation after the hearing, the Tribunal identified certain information (the “Further Information”) referred to within the Exempt Paper, which, as described, appeared to the Tribunal potentially to fall within scope of the Request, that is to say, might be responsive information recorded outwith the Exempt Paper. On 27 October 2025, the Tribunal directed further submissions from TfL on the issue on an OPEN or CLOSED basis as appropriate.
In the event, TfL has been content to provide the Further Information to the Tribunal, and the Appellant, on an OPEN basis and to make OPEN submissions as to why TfL considers that it is not in scope of the Request. Nevertheless, TfL stresses that disclosure of the Further Information in the proceedings is not disclosure under EIR; it is being disclosed so that the Tribunal may consider whether it is in scope of the Request, and it is being disclosed to the Appellant in the interests of open justice, to minimise the disadvantage to him in making any submissions he may wish to make on that issue. TfL explains that the Appellant is under an obligation only to use the Further Information for the purposes of the litigation, and not to publish or disseminate it or rely on it for any other purpose (DVLA v Information Commissioner and Williams (Rule 14 Order) [2020] UKUT 310 (AAC)).
TfL submits that:
the Further Information is not in scope of the Request because it does not relate to a decision whether or not to renew the existing BOps contract (the focus of the Request), and that that is because renewal of the contract was not an option open to TfL at the time (because the maximum permitted number of renewals/extensions under the contract had already been used); the choice that TfL faced was one between re-procuring an external supplier (under a new contract) or bringing the system in house. Accordingly, none of the Further Information made recommendations in relation to a potential renewal of the contract.
The withheld information contains the formal approval of funding necessary to move forward with the internal build of replacement for BOps. Therefore, if there were any document which recorded the “formal decision” (as requested by the Appellant) not to seek to renew the contract, it was the withheld information – even if the decision to that effect was simply a case of proceeding with a different option, because renewal was unviable.
By contrast, the Further Information does not comprise the record of any “formal decision” (because it was the PIC that took the formal decision to proceed with investment in a different option); nor does it “make a recommendation” not to renew the contract or “provide the rationale” for that recommendation. It simply proceeds on the basis that renewal is not an option.
TfL submits that its transparency in relation to the Further Information does not weaken its position that exceptions from disclosure apply to the Withheld Information for the following reasons:
The public interest on which TfL relies in maintaining the primary exception on which it relies (the confidentiality of proceedings) lies in protecting the integrity of Part VA Local Government Act (LGA) 1972, and the confidentiality it provides for both closed sessions of meetings and the documents that will be considered at such sessions. The same concern does not arise in respect of a different document that has never been the subject of such confidentiality in its own right, simply because that document is referred to within the confidential material.
The financial and costing information contained in the Further Information is less specific than that in the Withheld Information and contains more assumptions and approximations, since it derives from an earlier stage of TfL’s analysis.
Because the Further Information is older than the Withheld Information. Moreover, TfL is in practice considering its sensitivity as it stands today – while the balance of the public interest would fall to be judged at the time of the Request if TfL were to apply exceptions, nothing in the EIRs obliges it to apply an exception merely because it would have been available at the time, and it makes no sense to do so if there is no longer significant concern about the release of the information.
TfL submits that if the Tribunal does consider that the Further Information is in scope of the Request, TfL does not seek to except it from disclosure under EIR.
The Legal Framework of EIR
Regulation 5 provides that, subject to a number of exceptions identified in EIR, a public authority shall make available upon request environmental information which it holds.
Regulation 2(1) defines environmental information as being information on:
the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements.
factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a).
measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a)… as well as measures or activities designed to protect those elements.
reports on the implementation of environmental legislation.
cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).
Regulation 12 provides relevantly as follows:
Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—
an exception to disclosure applies under paragraphs (4) or (5); and
in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.
A public authority shall apply a presumption in favour of disclosure. […]
For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that— […]
the request involves the disclosure of internal communications
For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—[…]
the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature; […]
the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;
the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest […].”
Appeal to the Tribunal lies by way of Regulation 18, which provides that the appeals provisions of FOIA shall apply.
Section 58 FOIA provides as follows
Determination of appeals
If on an appeal under section 57 the Tribunal considers-
that the notice against which the appeal is brought is not in accordance with the law, or
to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.
The import of section 58 FOIA is that the right of appeal to the First-tier Tribunal involves a full merits consideration of whether, on the facts and the law, the public authority’s response to a FOIA request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90].
The Legal Framework of Local Government
Relevantly for this appeal, the LGA provides as follows:
Section 100A- Admission to meetings of principal councils
A principal council may by resolution exclude the public from a meeting during an item of business whenever it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that if members of the public were present during that item there would be disclosure to them of exempt information, as defined in section 100I below [those specified in Part I of Schedule 12A LGA]
Part I schedule 12A Access to information: exempt information
Information relating to the financial or business affairs of any particular person (including the authority holding that information)
Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.
Section 100E- Application to committees and sub-committees
Sections 100A to 100D above shall apply in relation to a committee or subcommittee of a principal council as they apply in relation to a principal council
Section 100J Application to new authorities, Common Council, etc
In its application by virtue of subsection (1)(be) above in relation to Transport for London, section 100E(3) has effect as if for paragraph (bb) there were substituted— “(bb) a committee of Transport for London (with “committee” , in relation to Transport for London, here having the same meaning as in Schedule 10 to the Greater London Authority Act 1999);
S100I LGA defines “exempt information” for various purposes.
Paragraph 3 of Schedule 12A covers: “Information relating to the financial or business affairs of any particular person (including the authority holding that information).”
Paragraph 5 of Schedule 12A covers: “Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.”
S100A(1) provides that, “A meeting of a principal council shall be open to the public except to the extent that they are excluded (whether during the whole or part of the proceedings) [...] by resolution under subsection (4) below.”
S100A(4) provides that “[a] principal council may by resolution exclude the public from a meeting during an item of business whenever it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that if members of the public were present during that item there would be disclosure to them of exempt information, as defined in section 100I below.”
S100B(1)-(2) provides that copies of any report for the meeting may be excluded from the papers open to inspection by members of the public, so far as relating to items of the meeting which are not likely to be open to the public:
Copies of the agenda for a meeting of a principal council and, subject to subsection (2) below, copies of any report for the meeting shall be open to inspection by members of the public at the offices of the council […].
If the proper officer thinks fit, there may be excluded from the copies of reports provided in pursuance of subsection (1) above the whole of any report which, or any part which, relates only to items during which, in his opinion, the meeting is likely not to be open to the public.
Under s.100E(3), read with s.100J(3YA), any reference in Part VA to a committee or sub-committee of a principal council is a reference to a committee of Transport for London (with “committee”, in relation to TfL, here having the same meaning as in Schedule 10 to the Greater London Authority Act 1999, which makes provision for TfL to constitute committees for decision-making).
TfL’s Standing Orders
Paragraphs 74-75 of TfL’s Standing Orders (applicable in March 2022) provided as follows:
[T]he Board may establish Committees, Sub-Committees, Panels and other bodies permitted by Schedule 10 to the GLA Act.
The Board has established the following Committees of the Board on a standing basis:
[…]
Programmes and Investment Committee […].”
Paragraph 45 of TfL’s Standing Orders provided for copies of reports for meetings of the Board and its committees to be provided to the public.
Paragraph 49 of TfL’s Standing Orders provides as follows:
The General Counsel shall exclude from the copies of reports provided under standing order 45, the whole or part of any report which contains Confidential Information and may exclude from the copies of reports provided under standing order 45, the whole or part of any report which, in the opinion of the General Counsel, contains Exempt Information. Any such information shall:
be marked ‘Not for publication’; and
shall explain with reference to the definition of Confidential or Exempt Information why the information is not available to the public.”
Paragraph 165 of TfL’s standing orders further provided:
Procurement Authority is the authority to make a binding or contractual commitment with a supplier for the purchase of goods, services, land or works or to receive income arising from TfL Group activities in the areas of goods, services land or works. Procurement Authority extends to any action required within any existing contracts or relationships (e.g. unsatisfactory performance deductions or giving notice and termination of contracts), except where actions relating to contract performance are in accordance with a pre-determined formula or process included in the contract.”
TfL submits, and we accept, that the cumulative effect of the provisions above is that if the General Counsel (SO 49) thinks fit, there may be excluded from the public copies of reports for PIC meetings (s.100E(1), s.100J(1)(be), SO74-75) any papers which relate only to items during which, in their opinion, the meeting is likely not to be open to the public (s.100B(2)); including where it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that if members of the public were present during that item there would be disclosure to them of information relating to the financial or business affairs of any particular person or legally privileged information (s.100A(4), s.100I(1), Schedule 12A paras 3 and 5, SO49).
Analysis
It is not in dispute that the withheld information is environmental information, whose disclosure falls to be considered under EIR.
Is the withheld information responsive to the Request?
The parties, more accurately the Respondents because, of course, the Appellant has not seen the withheld information, have proceeded on the basis that the withheld information is responsive to the Request.
We set out a summary of the contents of the Exempt Paper in our CLOSED decision. We conclude that the withheld information is not responsive to part 5 of the Request.
Nowhere does the Exempt Paper record any decision to renew or not to renew because, as TfL submits and we accept, no such decision had been made. Renewal was not an option for the reasons TfL has given. Consequently, the Exempt Paper could not, and it does not, record a recommendation for, or explain the rationale of, a decision which had never been in prospect.
In our view, however, there is certain information within the Further Information, which the Appellant has seen, which is responsive to part 5 of the Request, namely:
Information in a document called RUC Future Executive Steering Group Agenda and pack v3 300421, in a section on Slide 64 called “Problem Statement”, which says:
“Business Operation Services (BOps) and Enforcement
Operation Service (EOps) are currently provided by Capita, and Detection and Enforcement Infrastructure (D&EI) by Siemens; both contracts expire in September 2026 without any options for extend or renew. TfL Technology and Data (T&D) team are undergoing feasibility work to build an in-house BOps system that could replace part of the operating system (highlighted above). The working assumption is that the people and processes elements of the BOps, the EOps and D&EI contracts will be re-procured.
While initial planning indicates that a decision regarding procurement isn’t needed until early in 2023, potential earlier delivery of Silvertown and Blackwall in 2024/25, and a potential Boundary Charge in 2023, means we need a decision in June 2021.”
Information on Slide 65 of that document which identifies the decisions which need to be made in June 2021, starting with “Re-procurement in 2026 – Do we plan to build the BOps system to take over operation of all existing and planned charging schemes in-house or outsource?”
Information on Slide 72 of that document which says: “We cannot legally extend or renew the existing contracts, and the working assumption is that the people and processes elements of the BOps, the EOps and D&EI contracts will all be re-procured.”
Given that no active decision had been taken to renew, we consider that it would, arguably, have been open to TfL, taking a very narrow view of part 5 of the Request, to respond that the requested information was not held. However, taking a holistic view of the information contained in that section of the slides, and acknowledging what the Appellant was clearly trying to get at by part 5 of the Request, we are satisfied that Slides 62 – 73 are responsive to part 5 of the Request in their totality. Absent any reliance by TfL on any exception from disclosure under EIR, those Slides should be disclosed under EIR.
We observe for completeness, that we do not consider that the balance of the Further Information, which the Appellant has seen, is responsive to the Request and should be disclosed under EIR.
Exceptions from disclosure under EIR
If we are wrong in our determination that the withheld information is not responsive to the Request, we proceed to determine whether it is excepted from disclosure under EIR for the reasons argued by TfL.
A public authority is entitled to rely on late exceptions from disclosure: Birkett v IC and DEFRA [2012] PTSR 1200. Thus, it is open to TfL to rely on exceptions from disclosure in this appeal on which it did not initially rely on refusing the Request.
We take in turn each exception on which TfL relies to refuse disclosure of the withheld information.
Under FOIA, the date at which to assess the engagement of exemptions and, where appropriate, to apply a public interest test, is the date of refusal of the request for information (Montague v Information Commissioner and the Department of International Trade [2022] UKUT 104 (AAC)). The Upper Tribunal has found that under EIR, the date at which to assess the engagement of exceptions and the application of the public interest test, is the date of completion of internal review under Regulation 11 (O’Hanlon v Information Commissioner and Health and Safety Executive [2025] UKUT 066 (AAC)) (“O’Hanlon”). O’Hanlon is currently the subject of appeal to the Court of Appeal by the Information Commissioner and the Health and Safety Executive.
In this case, TfL provided the result of its internal review on 10 May 2024. The Appellant submits that TfL delayed in providing its internal review response, although we cannot identify the date when the Appellant says the internal response should have been provided. In our view, based on all the evidence before us, whether we take the date of refusal of the Request (23 February 2024) or the date of TfL’s response on internal review (10 May 2024), or some date in between, that makes no material difference in our determination as to whether each EIR exception is engaged or the public interest tests. We have considered the full date range in the context of each exception relied on by TfL.
Regulation 12(4)(e) (internal communications)
We accept that the withheld information constituted internal communications between officers of TfL and the PIC. We do not consider that the fact that the PIC was a discrete, decision-making organ within TfL, part of whose meeting was public, means that the PIC is not properly to be regarded as being an internal recipient of the withheld information.
Regulation 12(4)(e) is engaged.
In relation to the public interest balance: while we accept that there is an inherent public interest in transparency of proceedings such as the PIC’s consideration of the Exempt Paper, to indicate the quality of the process of the PIC’s discourse, that is not the same as a public interest in certain of the information which, in part, founds that discourse. To the extent that it is possible to divorce the information and the discourse it inspires, we consider that, in the context of internal communications, the public interest in formulating and communicating the best possible information to found the PIC’s discourse, which rests, in substantial part, in a framework of privacy, outweighs the public interest in disclosure of that information.
Given that the interests are not equally balanced, the presumption in favour of disclosure does not, in our view, tip the scales in favour of disclosure.
Regulation 12(5)(b) (course of justice)
By her witness statement, Ms Edney explains that it is not uncommon for TfL to face litigation in areas on which the PIC makes decisions, including challenges relating to procurement, or judicial reviews of policy decisions relating to TfL’s air quality programmes. TfL lawyers need to be able to feed their legal advice into papers to the PIC in order for PIC to obtain a rounded and informed picture of the risks it faces when it makes high-stakes decisions.
The Appellant submits that he has not seen any evidence that the PIC was taking legal advice, and that if the withheld information contains legal advice, it could have been redacted.
The withheld information contains legal advice to the PIC. We are satisfied that its disclosure would adversely affect the course of justice in the sense that, to the extent that any of the withheld information may be subject to legal professional privilege, such privilege would be lost by disclosure, and that such loss is sufficient it itself to have an adverse effect on the course of justice.
In relation to the public interest balance: the Courts have long recognised the importance of a party being able to maintain free and frank communications with their legal adviser to obtain legal advice, and there being a strong, inherent interest in preserving legal professional privilege.
We consider that the public interest in disclosure of any part of the withheld information which might attract such privilege in this case is substantially outweighed by maintaining the exception from disclosure of such information.
Given that the interests are not equally balanced, the presumption in favour of disclosure does not, in our view, tip the scales in favour of disclosure.
Regulation 12(5)(d) (confidentiality of proceedings)
We accept that the private part of the PIC meeting at which the Exempt Paper was considered, constituted formal proceedings, and confidential proceedings as provided for by law, that is to say the LGA. The withheld information was prepared for, and founded discussion at, those proceedings. Disclosure of the withheld information would self-evidently adversely affect the confidentiality of those proceedings.
We understood the Appellant to suggest that the presumption in favour of disclosure afforded by Regulation 2(2) overrides the application of the LGA. That is not correct. Regulation 2(2) is not effective to override or disapply other legislation. Rather, it is to be applied once an exception has been determined to be engaged, and once the public interest balance has been undertaken. If, on that latter exercise, the scales are even, then the presumption may or may not tip the balance of those scales in favour of disclosure.
Regulation 12(5)(d) is engaged.
In relation to the public interest balance: disclosure of the withheld information would, in our view, have constituted a serious and adverse intrusion on the PIC’s assessment of legal, contractual and commercial matters, each and all feeding into TfL’s business strategies undertaken in the public interest.
Such public interest as there may have been in disclosure of the withheld information is, in our view, substantially outweighed by the need for the PIC, discharging its function within and for the benefit of TfL, to have a framework in place to enable confidential proceedings to consider information submitted to those proceeding. That such framework is provided for by law, that is to say, the LGA, underscores its importance. There is an inherent public interest in protecting that confidentiality.
Ms Edney said this in her witness statement:
I acknowledge, of course, that TfL officials would still be duty-bound to give advice to PIC to the best of their ability, even if the information in this case (and any cases involving sufficiently similar circumstances) had to be disclosed. It is not that I think that they would cease to be independent, impartial and conscientious in giving advice to the best of their ability, if disclosure took place in this case and in similar circumstances. However, the characteristics of the information that goes into exempt papers to PIC mean that, in practice, what it would mean to give advice to the best of officials’ ability would change. Consideration of what needs to be kept private in PIC decision-making, in order to promote the public interest and enable PIC to secure value for money, is positively required of TfL officials: that is exactly why they need to think about what to exempt for the purposes of the local government legislation. If they started to become more circumspect in their advice to PIC, then I think that would be consistent with them giving responsible consideration to the risks to TfL arising from wider disclosure of information before the PIC.
I should also say that my colleagues and I are already well aware that any information we produce and exchange is subject to the information rights legislation and so it is always possible in principle that it may have to be disclosed, subject to any applicable exemptions or exceptions. We do not labour under the misapprehension that the privacy of our ‘safe spaces’ is absolutely guaranteed, or that it is absolutely guaranteed in perpetuity. However, where particular proceedings have specific legal protections for their confidentiality, that does provide officials with more reassurance about the confidentiality of information forming part of those proceedings. I think it is reasonable for officials to proceed on the basis that, where there is a law providing that certain information is “excluded” from publication, it should generally not be published without sufficiently compelling reasons to override that protection.”
The Appellant submits that Ms Edney’s evidence indicates the PIC approving a budget increase, and that precisely that sort of information should be in the public domain, albeit without revealing details of supplier’s quotes. The Appellant submits that that would make for a tighter budget leaving no wriggle room for the supplier, and that publishing a tight budget improves a party’s bargaining position.
The Appellant further submits that Ms Edney’s evidence as to the need for a continued safe space for ongoing decision making, specifically in relation to what the Appellant describes as escalating costs and extending timelines, indicates maladministration. The Appellant submits that the effect of EIR is that where there are concerns of maladministration, there is a presumption of more, not less disclosure.
The Appellant further submits that TfL’s expressed concerns about a chilling effect on TfL's decision-making arising from disclosure of the withheld information: indicate that TfL wishes to avoid scrutiny and are undermined by TfL subsequently publishing “a number” in the Tender publication of 2025. The Appellant submits that “a price on its own” is not enough to damage competition; it simply means that someone will bid at the level of that price, someone will bid above it, and someone will bid below it; what matters is the context of the proposal; in any event, TfL could redact the number.
It should not need to be observed that public authority officials have a responsibility to act with integrity in relation to the formulation of submissions to be provided to decision-makers, and that those decision-makers have a responsibility to act with integrity in their consideration of those submissions, their deliberations and decision-making.
We accept, however, that there will be cases where in relation to those formulating submissions, knowledge that the information they input into their submissions will (rather than might) be disclosed, would inevitably temper some of their expression, giving rise to a degree of circumspection which may not allow the fullest or most textured information to be provided. That will likely have an adverse effect on the quality of decision-making. Fuller, more textured information is likely to improve decision-making. In our view, this is such a case.
In the context of proceedings relating to “live” commercial decisions being taken in the public interest, where those decisions, and the information founding them, will continue, in varying degrees, to inform or be relevant to subsequent and/or associated decisions, it is, in our view essential that the confidentiality of the proceedings generally, and the information informing those proceedings, is maintained.
Commercial decision-making relating to substantial projects of the type under consideration in this appeal is not decision-making of an instant, discrete, or inevitably linear nature, and the information which informs it continues to be precious, even if in varying degrees and ways at different times. It is not realistically possible at any given point in time to identify with any certainty any future point in time at which that information might not still merit confidentiality.
Ms Edney’s OPEN and CLOSED evidence substantiates this point. She makes clear that procurement work proceeded after the PIC approvals, and reminds us that Project Detroit interacted with both TUC and ULEZ expansion:
In relation to TUC, in September 2022, a further submission was made to the PIC requesting procurement authority for Capita to implement changes to the existing BOps system needed to deliver TUC.
In relation to ULEZ, the proposal to proceed with ULEZ expansion was confirmed in March 2022 and consultation occurred in May-July 2022.
In-house development timescales for the BOps system then changed from 2024 to 2025 and then to September 2026.
In January 2025, a final decision was made not to proceed with Project Detroit.
Given that the interests are not equally balanced, the presumption in favour of disclosure does not, in our view, tip the scales in favour of disclosure.
Regulation 12(5(e) (commercial information)
We accept that the withheld information is commercial in nature.
The Appellant submits that it is not enough for the information to be commercial in nature, rather that its disclosure would cause significant harm. That is incorrect. Regulation 12(5)(e) makes no such provision.
We accept that the withheld information is subject to confidentiality provided by law: paragraph 3 of Schedule 12A LGA provides protection for information relating to the financial or business affairs of a relevant authority.
We accept that the confidentiality protects a legitimate economic interest, that is to say, TfL’s economic interest in retaining or improving, and not diminishing, its market position vis a vis its suppliers, and protecting its commercial bargaining position in the context of negotiations with suppliers.
We find Ms Edney’s OPEN and CLOSED evidence on this point compelling. By her OPEN evidence, Ms Edney says this:
TfL was still in contract negotiations with Capita and Siemens regarding the BOps inhouse and re-let projects and supplier relationships could have been impacted by the release of such commercial information. Ongoing discussions and negotiations with these suppliers at that time included discussions about delivery of TUC, delivery of Project Detroit, the re-let, and negotiations around exits from their current contract in 2026 (which was then expected to be the timescale). There would also have been regular ‘change request’ processes under the contracts, whereby we would ask for a quotation for particular changes to the system or additional works under the contract, they would review our requests and send an impact assessment and a quotation, and we would then negotiate cost in light of that quotation. These change requests would have ranged in value from the hundreds of thousands of pounds to the millions.”
Ms Edney elaborates in her CLOSED evidence, which we set out in our CLOSED decision.
The Appellant submits that there are no relevant suppliers to consider because TfL declined to go out to tender, meaning that there was no legitimate economic interest to protect. We reject that submission. We accept Ms Edney’s CLOSED evidence as to the commercial sensitivities of the information in the Exempt Paper. The fact that TfL did not tender in this case does not mean that the information, if disclosed, would not be used to TfL’s real disadvantage subsequently in other commercial contexts
We accept that, self-evidently, disclosure of the withheld information under EIR, that is to say, disclosure to the world, would adversely affect the confidentiality in the information.
The Appellant submits that such information as he seeks within the withheld information which is not commercial could be redacted. We consider that the withheld information should be viewed holistically. To the extent that any information within it is not commercial information, it either falls to be excepted under the other EIR exceptions relied on by TfL.
Regulation 12(5)(e) is engaged.
In relation to the balance of the public interest: Ms Edney’s evidence is that disclosure would have prejudiced TfL’s commercial interests, not least by making public TfL’s assessment of the contract price to be agreed with its suppliers, which would have given competing suppliers additional knowledge of the scope of works and costs being procured.
We are satisfied that any public interest in the disclosure of the withheld information is, in the context of the commercial information contained within the Exempt Paper, substantially outweighed by the public interest in avoiding a serious adverse impact on TfL’s commercial interests which disclosure would entail.
We are persuaded that at the time of the internal review (and refusal of the Request), the information retained, and was reasonably believed to continue to retain, valuable currency. The information would have informed the negotiating positions of a number of parties, including TfL, both in the present and the future.
Given that the interests are not equally balanced, the presumption in favour of disclosure does not, in our view, tip the scales in favour of disclosure.
Other matters relating to the public interest balance
Aggregation
We have identified in relation to each exception relied on by TfL that in each case, the public interest in maintaining the exception is not outweighed by the public interest in disclosure, and that the presumption in favour of disclosure under Regulation 12(2) is not effective to change that.
The public interests in multiple exceptions fall to be aggregated for the purposes of considering the public interest balance (Ofcom v IC [2011] PTSR 1676). Aggregation of the various public interests we have identified in maintaining the exceptions relied on, readily displaces the presumption in favour of disclosure in this case.
Other material in the public domain
TfL has pointed to material placed by TfL in the public domain relating to Project Detroit and to its decision-making relating to RUCs generally. Specifically, Ms Edney has identified a number of mechanisms to promote transparency and accountability regarding TfL’s stewardship of resources and its management of the projects in question as follows:
All payments of over £250 to Capita, Siemens (as was) and other third-party suppliers are published on TfL’s website and they are searchable by supplier name or date.
Various information about Project Detroit in the public domain at the time TfL responded to the Request.
an FOI response dated 6 December 2022, which stated as follows: “We are building a new core technology platform for road user charging to replace the currently outsourced system for which the contract expires in 2026. The project is named Detroit. The confirmed scope is to replicate the capability of the existing charging system that processes automatic number plate recognition events and according to a set of pre-defined business rules to support the Congestion Charge, HGV permit scheme linked to the Direct Vision Standard, Low Emission Zone, Ultra Low Emission Zone, and, in the future, the London wide ULEZ and user charges at the Blackwall and Silvertown Tunnels (collectively known as Road User Charging, RUC). The Detroit platform has the capability to be extended and we will be looking to build the system flexibly so that other forms of charging based on distance, vehicle type, etc., could be catered for if a decision was made in future to do so. TfL will own the IPR for the platform going forward. […] The defined scope for Detroit is to replace current systems that support the Congestion Charge, HGV permit scheme linked to the Direct Vision Standard, Low Emission Zone, Ultra Low Emission Zone and, in the future, the London Wide ULEZ and user charges at the Blackwall and Silvertown Tunnels. […] We are working through Crown Commercial Services (CCS) to acquire development services. We are using the following CCS frameworks: RM6106, RM6263, RM6193 and RM6195. At present there is a mixture of TfL employees and contract staff working on Detroit - contract staff are contracted through Reed. Due to the number of technical staff we need we are using other framework contracts. As of now we have awarded to NTT Data, LA International, Methods Business, Digital Technology Ltd and IDPP Consulting Limited.”
a response to an EIR request dated 29 January 2024 which confirmed the accuracy of various parts of the response above, and further stated: “As of December 2023 there are 157 staff time sheeting fully to Project Detroit (an average of 30 hours or more per week). Across TfL there are also some staff who spend a smaller proportion of their time supporting the project in addition to other schemes and/or responsibilities. […] As of December 2023, the development of the new technology platform has an estimated final cost of between £130m to £150m, the spend to date is £21.0m. […] In June 2023 Phase 1 of the System Build was completed. This included testing and sprint demo of key journey maps including paying for driving in London (as per existing schemes only), signing up for Autopay, creation of a RUC account, applying/managing vehicle based discounts, and journey detection. In December 2023 Release 2a was completed and passed Business Acceptance Testing.”
The fact that the Greater London Authority have also responded to various information requests about Project Detroit.
Other accountability mechanisms to scrutinise TfL’s work to secure value for money such as monitoring project progress, including financial controls, as a core part of the governance structure TfL has in place. For RUCs, this involves: layers of periodic (four-weekly) reporting to senior levels of the organisation via TfL’s Investment Group and the RUC Executive Steering Group; annual submissions are provided to the PIC for the RUC portfolio; scrutiny by TfL’s internal Programme Management Office (PMO) and Assurance, including the Independent Investment Programme Advisory Group (a TfL arms-length assurance group of independent external experts which reviews plans for large projects and reports freely to the Board and its Committees).
We accept that the above structures and processes meet a public interest in transparency in Project Detroit and RUC generally, but, viewed in the round, we consider that they are of limited weight in the context of the very precise information sought by the Appellant. However, for the reasons we have given, the public interest in maintaining the exceptions from disclosure is outweighed in any event by the public interest in disclosure.
The Appellant’s submissions on TfL’s approach to transparency
For completeness, we should observe that we consider that the very great majority of the Appellant’s arguments for the public interest in disclosure of the withheld information outweighing the public interest in maintaining the exceptions relied on by TfL, are unparticularised, speculative and/or rest on assumptions or generalisations, for example: “the exceptionally high cost and risk of building systems-in house”; whether TfL could be at risk of wasting hundreds of millions on an undeliverable project; there could be a suspicion of maladministration or incompetence or impropriety; suspicion that the system envisaged would be used to introduce a pay-per-mile scheme; “potential privacy implications” relating to the possibility that people’s whereabouts could be tracked and risks to public safety, should things “go wrong”.
Those submissions do not establish a public interest in disclosure on the facts of this case. The Appellant frames his submissions by reference to what he describes as TfL’s secrecy, and selective, misleading, presentational, and publicly performative use of evidence. We should say that nothing we have seen in OPEN or CLOSED suggests any such approach by TfL. In any event, the fact that TfL seeks to rely on exceptions from disclosure afforded under EIR is not, of itself, indicative of anything untoward.
Conclusion
The Commissioner’s Decision Notice proceeded on the basis that the withheld information was responsive to part 5 of the Request. For the reasons we have given, we find that it was not. In that regard, we find that the Commissioner erred, and to that extent, the Decision Notice is not in accordance with the law.
The appeal has proceeded on the basis that the Appellant is entitled to the withheld information. For the reasons we have given, we find that the Appellant is not so entitled. To that extent, the appeal must fail.
However, the Appellant’s appeal is expressed to be an appeal against the Commissioner’s decision to uphold TfL’s decision not to disclose to the Appellant “the document which sheds light on why it decided not to seek a rebid on the cost of running its existing road user charging systems and instead spend several times as much money building its own systems in house.”
For the reasons we have given, we have concluded that TfL holds information, namely Slides 62 – 73 of the RUC Future Executive Steering Group Agenda and pack v3 300421, which is responsive to the Request, and, absent reliance by TfL on any exception from disclosure under EIR, should be disclosed under EIR. To that extent, the appeal succeeds.
We make the substituted Decision Notice on the face of this judgment.
For the Appellant’s benefit: the OPEN and CLOSED versions of this decision have been provided in draft form to the Commissioner and TfL before their finalisation for promulgation, in order that either of those parties may identify whether the Tribunal has inadvertently included any CLOSED material in the OPEN decision, and any typographical errors.
Signed Judge Foss
Dated 22 April 2026