The information rights watchdog has ruled that the Department for Transport (DfT) was wrong to refuse to disclose details of vehicle manufacturers’ use of ‘defeat devices’.
However, the DfT has now refused to clarify whether its own experts backed its claim that information property (IP) rights applied to the withheld information.
Defeat devices have been used by vehicle manufacturers to change the operation of emission control systems, with engines producing lower emissions, such as nitrogen dioxide, when they detect patterns of use associated with laboratory testing.
This means vehicles can be much more polluting in real-world conditions than when laboratory tested for certification purposes.
The law currently prohibits the use of defeat device technology, subject to some limited exceptions.
Campaign group ClientEarth said that last year the DfT received information from some manufacturers as to the conditions that affect the performance of emission controls in certain vehicle models.
It asked the department to provide this information in full under the Environmental Information Regulations, but the DfT refused, citing claims from some companies that it constitutes ‘trade secrets’ and therefore protected IP or copyrighted information.
ClientEarth challenged this in a complaint to the Information Commissioner’s Office (ICO).
The DfT suggested that experts at the Vehicle Certification Agency were satisfied that IP rights applied to the withheld information, although it does not appear to have stated this explicitly.
Transport Network asked the DfT to clarify whether the VCA had advised this but it declined to do so.
In its decision, the ICO said the DfT had failed to make the case that the rule allowing it to withhold the information applied.
It instructed the DfT to provide the information within 35 days of the decision (4 December), although it has the right to appeal. The DfT said it was aware of the decision ‘and will respond accordingly’.
ClientEarth lawyer Katie Nield said: ‘Excessive emissions caused by illegal defeat devices mean people are continuing to breathe toxic air – avoidably. This is putting a burden on the NHS and impacting our economy.
‘This decision makes it crystal clear that information about how and when defeat device technology is used should not be concealed by the Government for the sake of protecting industry trade secrets.’
She added: ‘Evidence suggests that there are millions of highly polluting vehicles still on our roads that are likely to contain illegal defeat devices, yet manufacturers and regulators have made it near impossible to get hold of information which shows exactly how this technology is used in some models.’
