AGGREGATION AND ARTICLE 10 IN THE FIRST-TIER TRIBUNAL: NEITHER NEEDED

November 8th, 2011 by Robin Hopkins

Sinclair v IC and Department for Energy and Climate Change (EA/2011/0052) concerned a request under the EIR from the Taxpayers’ Alliance for information on the potential financial and/or economic cost of Britain meeting a pledge to cut emissions by 42 per cent from 1990 levels by 2020. This pledge had been considered in connection with the Copenhagen Conference on climate change in 2009.

DECC refused this request, relying on regulations 12(5)(a) (disclosure would adversely affect international relations) and 12(4)(e) (internal communications).

In one of the first applications of the “aggregation” approach to the public interest test approved by the ECJ in the OFCOM case (on which, see here), the Commissioner held that the composite aggregated weight of the public interest factors in maintaining the two exceptions outweighed those which favoured disclosure – the international relations exception alone would not have sufficed.

The Tribunal was sufficiently impressed by DECC’s evidence to conclude that aggregation was not needed – the public interest in maintaining the international relations exception was sufficient to outweigh that in disclosure.

Interestingly, the Tribunal also considered an Article 10 ECHR argument: the appellant relied on that Article in support of his right to the requested information. The Tribunal found that Article 10 did not assist the appellant on the facts of his case. Its views on the application of Article 10 to information rights more generally was as follows.

In terms of authorities supporting the application of Article 10 to information rights, the high point was the Second Chamber decision in the ECtHR in Társaság a Szabadságjogokért v Hungary (Application no. 37374/05), in which the state had conceded that Article 10 rights were engaged where a civil liberties pressure group requested information about a complaint to the Constitutional Court.

Previous Grand Chamber authorities, however, had consistently rejected the proposition that Article 10 supported a right of access to official information.

The Tribunal is required to follow any clear and consistent Strasbourg jurisprudence. It found that “there is as yet no clear decision that Article 10 extends as far as Mr Sinclair submitted”.

11KBW’s Holly Stout appeared for the Information Commissioner.

Robin Hopkins

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PUBLIC AUTHORITIES – ENVIRONMENTAL INFORMATION REGULATIONS

November 4th, 2011 by Rachel Kamm

Further to Robin Hopkin’s post this morning, here is a summary of the First-Tier Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182).

Mr Bruton had requested environmental information from the Duchy of Cornwall, concerning the conservation of an area designated under the Habitats Directive 92/43/EEC which lies within the Ducy. The Duchy refused the request on ground that it was not a public authority for the purposes of the Environmental Information Regulations 2004 (“the EIRs”).

The statutory framework

Under regulation 2 of the EIRs:

“(2) Subject to paragraph (3), “public authority” means –

(a) government departments;

(b) any other public authority as defined in section 3(1) of the Act Freedom of Information Act 2000, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding –

(i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or

(ii) any person designated by Order under section 5 of the Act;

(c) any other body or other person, that carries out functions of public administration; or

(d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and –

(i) has public responsibilities relating to the environment;

(ii) exercises functions of a public nature relating to the environment; or

(iii) provides public services relating to the environment.”

The EIRs of course implement Directive 2003/4/EC of 23 January 2003 on public access to environmental information (“the Directive”). This provides that:

“2. ‘Public authority’ shall mean:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.”

The Tribunal also took into account the definition of a public authority for the purposes of the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters.

The issues

The Tribunal was mindful that the concept of public authority that pertains in relation to the public’s right of access to environmental information as deployed in the Directive must be construed having regard to the wider scheme of EU environmental law, in particular the Habitats Directive (paragraphs 20-21).

It identified at paragraph 32 that the questions to be decided were:

a) Whether the Duchy was a body or other person, and

b) If so, whether it carried out functions of public administration, or

c) Whether the Duchy was under the control of the Duke who carries out functions of public administration and has public responsibilities relating to the environment, exercises functions of a public nature relating to the environment, or provides public services relating to the environment.

Whether the Duchy was a body or other person

On the first issue, the Tribunal considered detailed evidence about the Duchy, which makes for an interesting (if esoteric) read. It concluded that, “whatever the basis of the Duchy under the 1337 Charter, we find that the Duchy is now a body or other legal person. Taking into account all the above evidence and other statutory provisions, the practices of the Duchy and the way it has presented itself to the world including Parliament, the differentiation of the Duchy and Duke in commercial and tax matters as well as under legislation and the contractual behaviour of the Duchy, we are led to the conclusion that the Duchy is a body or other person for the purposes of regs 2(2)(c) and (d) of the EIR” (paragraph 57).

Whether it carried out functions of public administration

The Tribunal described the Upper Tribunal decision in  Smartsource v IC and others [2010] UKUT 415 (AC) as “very relevant” here (paragraph 58). It found that Smartsource meant that “a body which carries out functions of public administration will not be a public authority for the purpose of the EIR if those functions are on the whole secondary functions which are related to and flow from primary functions which are not functions of public administration. But where the functions of public administration are separate self standing functions which do not flow from or depend on the main activity of the body, they are not “ancillary” in Smartsource terms and the body may be a public authority for the purpose of the EIR” (paragraph 63). Note that this aspect of the decision may well not be the final word on this topic. The Upper Tribunal is due to hear an appeal in Fish Legal and Shirley v IC and United Utilities Water plc and others (GIA/0979 & 0980/2011) in January 2012, which will include consideration of  the Upper Tribunal’s decision in Smartsource v IC and others [2010] UKUT 415 (AC).

Applying this test in the case of the Duchy, the Tribunal found that its primary function (according to its 2010/11 Annual Report) was to provide an income for present and future Dukes and that the Duchy’s principal activity to generate this income was the commercial management of its lands and properties (paragraph 64).

The Tribunal found (after a further lengthy esoteric discussion) that it was also a Statutory Harbour Authority (paragraph 87).  As such, it was a relevant authority and a competent authority for the purposes of the Habitat Directive and the Conservation of Habitats and Species Regulations 2010 (paragraph 97). The judgment records (without expressly endorsing) the argument of the Appellant that “it would be entirely contrary to the aims of the Aarhus Convention, the Directive and the EIR if a body which is a ‘relevant authority’ for the purposes of what the European Commission has stated is “the cornerstone of Europe’s nature conservation policy” (alongside the Birds Directive) was not subject to the European access to environmental information regime” (paragraph 92).

The Tribunal applied the multifactorial approach in Smartsource to the Duchy’s activities as a Statutory Harbour Authority and concluded that “the preponderance of factors point to the Duchy carrying out functions of public administration. This conclusion does not mean that we consider all Statutory HAs will necessarily be public authorities under the EIR. It depends on the facts in each case” (paragraph 99).  (In the alternative, it found that the Duke was the Statutory HA (paragraph 100).) It further concluded that these functions were not ancillary to the Duchy’s primary business (paragraph 101).

Where have we got to so far?

At this point of the judgment, the Tribunal helpfully summarises its conclusions as follows (paragraph 102):

“So far we have found that:

i) The Duchy is a body or other person;

ii) The Duchy is a Statutory HA;

iii) Statutory HAs are ‘relevant authorities’ and likely ‘competent authorities’ under the UK regulations implementing the Habitat Directive;

iv) The Aarhus Convention requires the Directive to be read purposively so as to cover information requests relating to the EU environmental regime as a whole;

v) Statutory HAs carry out functions of public administration;

vi) Therefore the Duchy is a public authority under reg 2(2)(c);

vii) Even if the Duchy is not the Statutory HA, the Duke is;

viii) The present Duke manages and controls the Duchy;

ix) Then the Duchy is a public authority under reg 2(2)(d).”

The most interesting point here is that the Tribunal accepts the Appellant’s argument (which was not expressly endorsed at paragraph 92, as discussed above) that the Directive has to be read so as to cover information requests relating to the EU environmental regime as a whole. Does this mean that any competent authority for the purposes of the Habitats Directive and/or other environmental directives must be a public authority for the purposes of the EIRs?

Conclusions

Having reached the above findings, the Tribunal found that it did not need to go any further. The fact that the Duchy was a public authority for the purpose of the EIRs in its capacity as a Statutory Harbour Authority meant that it was a public authority for the purposes of the EIR generally (paragraph 103).

The Tribunal did go on to comment on two other factors which it considered also pointed towards the Duchy being a public authority that was subject to the EIRs. These factors were that the Duchy provided an income for the Price of Wales in his constitutional capacity to undertake public services and that it enjoys a statutory right to bona vacantia.

The decision only applies to public authorities for the purposes of the EIR and not also FOIA. However, as discussed in previous posts (e.g. here) the definition of environmental information is wide.

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DUCHY OF CORNWALL IS A PUBLIC AUTHORITY

November 4th, 2011 by Robin Hopkins

The Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182) was published yesterday. The issue was whether the Duchy is a “public authority” for the purposes of the Environmental Information Regulations 2004. The Tribunal decided that it is. 11KBW’s Karen Steyn and Joseph Barrett appeared for the Appellant, Amy Rogers (led by Jonathan Crow QC) appeared for the Duchy and Attorney General, and I appeared for the Information Commissioner. Panopticon will provide some analysis of the decision shortly – but in the meantime, there has been considerable press coverage: see for example here and here.

Robin Hopkins

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INTERNAL FIXTURES ARE NOT ‘LANDSCAPE’

September 19th, 2011 by Rachel Kamm

The Tribunal, in Black v Information Commissioner (EA/2011/0064), has considered the definition of environmental information in the Environmental Information Regulations 2004 (“the EIRs”). The heart of the definition is “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”. 

It is of course important that public bodies spot when requested information falls within this definition, because any such request must be considered under the EIRs instead of the Freedom of Information 2000 (“FOIA”). It is fairly common for the requester and the public body to assume that a request has been made under FOIA, but to realise subsequently that the information should have been considered under the EIRs. The definition of environmental information is broad and sometimes surprises people by capturing information which does not appear to be environmental. For example, Robin Hopkins recently discussed on this blog how the “landscape” element of the definition has been interpreted broadly so as to include a monument. The Tribunal’s decision in Black is relatively unusual in that the appellant argued that all of the requested information fell within the EIRs, but the Tribunal rejected this submission. 

The appellant sought information on internal fixtures, such as fireplaces and chimney pieces, in English Heritage properties.  He relied on the Advocate General’s opinion in the case of Stichting Natuur en Milieu (Case C-266/09) to argue that buildings and structures were part of the landscape, which was not limited to the natural environmental. The appellant also argued that the EIRs had failed to properly implement the Directive. The Tribunal found that the opinion in Stichting Natuur en Milieu did not support the appellant’s submission and concluded that “On a plain reading of both the Directive and the EIR (which are identical in any event) the Tribunal finds that information relating to the internal fixtures of a building does not constitute “environmental information” within the definition, whether as landscape or otherwise”.   

Rachel Kamm

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Launch of Information Law Reports

July 19th, 2011 by Rachel Kamm

 The Information Law Reports launched on 14 July 2011, with the following announcement on 11KBW’s website:

Leading chambers 11KBW and legal publisher Justis Publishing are collaborating in a first for both organisations: the creation of a new series of law reports available both in bound volumes from next week and on the established Justis platform from this morning.

Information law is ever more important, seeking to balance the “right to know” and the “right to be left alone” in an age of massive databases and global information flows. We all want to protect our own privacy; but we also want to understand how public authorities make decisions and spend our money. This new series will help professionals grapple with these issues.

Timothy Pitt-Payne QC, a barrister at 11KBW and one of the editors of the new reports, said: “There is a growing case-law, generated by the specialist Information Rights Tribunal and the higher courts. Navigating this material and quickly identifying the most important recent developments is increasingly challenging. The Information Law Reports seek to meet this need, bringing together all the most important cases in a single source. 11KBW are delighted to be working with Justis on this much-needed project.”

Masoud Gerami, Managing Director of Justis Publishing, said: “We have had a number of significant milestones in our 25-year history, mostly associated with innovation and developments which have changed legal information dissemination for the better. I am delighted that another milestone has been added to our list of achievements by producing the new series of Information Law Reports in association with 11KBW, the leaders in this increasingly important field. I believe that the complementary nature of the expertise from the partners in this project is the ideal requirement for any successful product or service, and we look forward to a continued relationship with 11KBW.”

He added: “This is also the first time that Justis Publishing has produced a product in hard copy, and we are very excited about the possibilities that the combination of hard copy and online versions will present.”

For further information, please call +44 (0)20 7267 8989 or email press@justis.com.

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“ENVIRONMENTAL INFORMATION” INCLUDES NAMES OF OFFICIALS DRAWING UP MONUMENTS POLICY

May 25th, 2011 by Robin Hopkins

Omagh DC v IC (EA/2010/0163) is the newest decision on the scope of “environmental information” under the EIR. It is notable both for the broad interpretation it gives to the “landscape” element of that definition, and for the relevance the Tribunal ascribed to the purpose of the request.

The case concerned a memorial on Council-owned land commemorating IRA members who died during the hunger strikes of 1981. The Council undertook an Equality Impact Assessment on its policy on “Disposal of Land for the Purpose of Erecting or Retaining a Memorial or Monument”. The requester sought the names, departments and job titles of those Council officials responsible for that Assessment, as well as the Council’s letter to the Equality Commission.

The issue for the Tribunal was whether this should have been dealt with under FOIA or the EIR. The Council argued that the applicant’s queries were not about the environment, but about a process being used to inform a consultation on a Council decision. The Commissioner contended that the requested information was “environmental information” within the meaning of reg. 2(1)(c) EIR because the assessment was a “measure which is likely to affect the land and landscape”, and that details of those officials responsible for drafting the policy were not so far removed from this “measure” as not to have an effect on it.

The Tribunal has agreed with the Commissioner. It accepted that the Assessment could be fairly described as an investigative step prior to a potentially controversial final decision affecting or protecting the landscape, and also that the scope for “visual as opposed to cultural impact is capable of being regarded as minor” in this case. Nonetheless, it observed that under reg. 2(1)(i), the test is not only whether a measure affects or is likely to affect one of the listed elements but also whether a measure is “designed to protect” those elements; therefore, whether a change is likely is not determinative. The title of the Assessment implied a possible outcome preserving the status quo. The Tribunal was clear that:

“Only the connection with an impact on land or landscape links the concerns in this case into environmental rights. Had the memorial in question been inside a public building, the landscape context would have been absent but the cultural concerns would not have been different”.

Interestingly, although it recognised the “motive blind” principle, the Tribunal took the view that motive could be relevant not to the decision on whether or not to disclose the information (with which the Tribunal was not concerned) but to determining whether or not information is “environmental”:

“… both context and the motive of the requester are potentially relevant considerations. If the requester appeared to be wholly unconscious of an environmental aspect or import to his request, and stressed other reasons for his interest in the information, he could not be said to be denied environmental access rights if his request is not considered under EIR… If the Complainant had shown no evidence of concern about landscape impact, or if the allocation of the issue to one framework rather than the other could have led to a material difference in treatment of the substantive issue, these would have been relevant factors to take into account”.

Robin Hopkins

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KIRKLEES COUNCIL PROPERTY SEARCH CASE

March 24th, 2011 by Timothy Pitt-Payne QC

We have previously posted about the above decision:  see here.

The case is now available online here on the website of the Upper Tribunal (Administrative Appeals Chamber).

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SOWING OF GM-CONTAMINATED SEEDS IS NOT AN ‘EMISSION’ FOR THE PURPOSES OF THE EIR

March 10th, 2011 by Anya Proops

Both the Environmental Information Regulations 2004 (EIR) and the Directive from which it derives (Directive 2003/4/EC) emphasise the importance of permitting the public access to information on ‘emissions’ – see further the fact that a number of the exceptions provided for in the EIR and the Directive are specifically disapplied in the case of emissions information (see r. 12(9) EIR and Art. 4(2) of the Directive). However, one question which is not always easy to answer in practice is what will constitute ‘an emission’ for the purposes of the legislation. In part, this difficulty arises because neither the EIR nor the Directive contains any definition of the word ‘emission’ (although the concept is examined in the Implementation Guide to the Aarhus Convention, which the Directive was itself designed to implement). The question of what will constitute an ‘emission’ for the purposes of the EIR and the Directive was considered for the first time by the Information Tribunal in the case of GM Freeze v IC & DEFRA (EA/2010/0112). In that case, the First Tier Tribunal held (obiter) that the word ‘emission’ did not include the deliberate sowing of genetically-modified seed. The Tribunal’s decision is also worth considering in view of the analysis it contains on the application of the personal data exception provided for in r. 13 EIR.

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LATE RELIANCE: THE SAGA CONTINUES

March 3rd, 2011 by Robin Hopkins

We have posted a number of times on the contentious issue of late reliance, i.e. whether a public authority is entitled to rely as of right on an exemption or exception (under FOIA or the EIR) raised for the first time before the Tribunal. Last month, the Upper Tribunal answered this question with a firm “yes” in its decision on appeals by the Home Office and Defra, available here. That may not be the last word on this issue: Simon Birkett, founder of Clean Air London and Second Respondent to Defra’s appeal, has applied for permission to appeal that decision to the Court of Appeal. The press releases and grounds of appeal are available here.

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CONFIDENTIAL COMMERCIAL INFORMATION AND HUMAN RIGHTS – NEW TRIBUNAL DECISION

December 21st, 2010 by Anya Proops

A question which is frequently posed under both FOIA and the EIR is whether and to what extent confidential, commercial information can lawfully be withheld by a public authority. The recent decision of the First Tier Tribunal in the case of Staffordshire County Council v IC & Silbelco [2010] UKFTT 573 (GRC), (EA/2010/0015) embodies a number of important principles which should be considered whenever this question is being posed.

In Staffordshire, a request had been made for disclosure of particular commercial information consisting of the sales figures and reserve figures which a particular quarry operator (Sibelco) had generated in respect of the minerals which it quarried. The information had been provided by Sibelco to the local authority under a voluntary scheme. The scheme had been set up with a view to assisting the authority in discharging its statutory obligations as a mineral planning authority. Sibelco had provided the information to the authority on the express basis that it was to be treated in strictest confidence. Following a request for disclosure of the information, the authority refused to disclose the information on the basis that it was exempt under s. 41 FOIA (the confidential information exemption). During the complaints process before the Commissioner, the authority accepted that, in view of the environmental nature of the information, the applicable access regime was the EIR, rather than FOIA. However, it went on to argue that the information was still exempt under r. 12(5)(e) (commercial/confidential information exception) or 12(5)(f) (exception in respect of information provided in confidence) EIR. The Commissioner accepted that both exceptions were engaged in respect of the disputed information. However, he concluded that, on an application of the public interest test, the public interest weighed in favour of the information being disclosed. The authority appealed the Commissioner’s decision to the First Tier Tribunal. The Tribunal held that the Commissioner had erred as the public interest balance provided for under r. 12(1)(b) EIR  weighed in favour of the information being withheld.

Importantly, in analysing the application of the public interest test the Tribunal took into account the recent Court of Appeal judgment in Veolia v Nottinghamshire CC [2010] EWCA 1214. In that case, which was concerned with the access to confidential, commercial information under s. 15 of the  Audit Commission Act 1998, Rix LJ concluded that: (a) he could see no reason why ‘valuable commercial confidential information’ could not amount to a ‘possession’ for the purposes of Article 1 of Protocol 1 of the European Convention of Human Rights (A1/P1) (b) in the circumstances, unrestricted disclosure of such information would amount to an interference with the A1/P1 right to possession enjoyed by the person whose information it was; and (c) such interference would have to be justified if it were not to be unlawful under the ECHR (see §§120-122). In Staffordshire, the Tribunal relied upon Rix LJ’s reasoning to arrive at the following conclusions on the application of the EIR (and FOIA) to confidential, commercial information (§151):

  • ‘The disclosure of confidential information by a public body such as the Appellant engages the ECHR rights of the holder of the confidence;

 

  • A statutory right for the public to have access to any information must have an exception read into it to exempt the disclosure of confidential information in order to give effect to those ECHR rights;

 

  • The presumption in favour of disclosure of all environmental information held by public bodies in Regulation 12(2) EIR 2004 must now be read subject to an exception in the case of any such information which is held by the public body subject to a legal duty of confidentiality;

 

  • Where environmental information is held by a public body which is subject to a legal duty of confidentiality there is recognised to be a “strong public interest” in the maintenance of valuable commercial confidential information;

 

  • Arguments can be advanced on the individual circumstances of the case to seek to justify overriding the duty of confidence for particular pieces of information.’

The Tribunal was of the view that the facts of the case were such that there was no justification for overriding the duty of confidence owed to Sibelco in respect of the disputed information.

In light of the Tribunal’s analysis of the implications of Veolia, it is to be expected that human rights arguments will now commonly feature in any appeal involving an application of the EIR or FOIA to confidential, commercial information.

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