Tag Archives: Appeals (Environmental Information)

Developing the Information Expressway

The Upper Tribunal has recently considered the meaning and scope of the exception in Regulation 12(4)(d) of the Environmental Information Regulations 2004 (“the EIRs”). This exception allows a public authority to withhold environmental information in response to a request where “the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data”.

Highways England Company Limited v Information Commissioner and Henry Manisty [2018] UKUT 432 (AAC) concerned a request made to Highways England by Mr Manisty in December 2016. Mr Manisty request related to the possible route of the Expressway between oxford and Cambridge being investigated by Highways England. His request was refused by Highways England and the Information Commissioner did not uphold Mr Manisty’s subsequent complaint to her office. Mr Manisty appealed to the First-Tier Tribunal who allowed his appeal, deciding that the exception in Regulation 12(4)(d) did not apply. Highways England sought, and was granted, permission to appeal to the Upper Tribunal.

Upper Tribunal Judge Jacobs reminds us that as the EIRs implement an EU Directive they must (for now) be interpreted in a way that accords with the normal principles that apply to EU law. Judge Jacobs reminds us that one of those principles is that the exceptions must be interpreted restrictively. Judge Jacobs points out that this is a separate consideration from the presumption in favour of disclosure enshrined within the EIRs; that presumption simply allocates the burden of proof while the restrictive approach defines the scope of the exception.

Judge Jacobs also addresses the Aarhus Convention and the Implementation Guide. The EU Directive, which the EIRs implements, implements the Aarhus Convention into EU law and so regard has to be had to the convention when interpreting the EIRs and the Directive. Judge Jacobs, in paragraph 19, reviews some of the relevant case law and concludes that the Implementation Guide “can be used to aid interpretation, but it is not binding and cannot override what the Convention provides.”

Judge Jacobs includes two helpful paragraphs setting out what the exception does not mean. When deciding the scope of the exception it is not permissible to take into account any adverse consequences that disclosure might have. This is relevant for the purposes of determining where the public interest lies and also, perhaps, deciding whether the exception is engaged. Judge Jacobs states that “[a]dverse consequences must not be made a threshold test for regulation 12(4)(d).” [para 21]

Judge Jacobs considers what “material” and “relates to” means within the exception. In respect of “material”, he considers that the word material “is not apt to describe something incorporeal, like a project, an exercise or a process.” The material in question may form part of a project or process etc.; however, the material in question must itself be in the course of completion. We are not necessarily concerned with whether the project is in the course of completion. [para 23] Judge Jacobs also holds that “[m]aterial includes information that is not held in documents and is not data: things like photographs, film, or audio recordings.” [para 24]

Having already looked at what the exception does not mean, Judge Jacob eventually gets around to deciding what the exception does mean. He notes, in paragraph 28, that the language in the exception is “deliberately imprecise.” That being said, Judge Jacobs, in paragraph 30, returns to the principle that the exception should be applied restrictively. The imprecise language does not mean the exception can be applied “so widely as to be incompatible with the restrictive approach required by EU law.” At the same time it cannot be applied so narrowly that its purpose is defeated. In paragraph 31 of the decision, Judge Jacobs, identifies yet another deliberately vague expression within the exception: ‘piece of work’. The judge identifies some factors that may be of some assistance in applying the exception. For example, if there has been a natural break in the public authority’s private thinking; or, perhaps, the public authority is at a stage where publicity around its progress so far is taking place. The continuing nature of the project, process or exercise might also be a relevant feature. However, public authorities shouldn’t get too excited: this is not, by any means, a checklist. Judge Jacobs makes it clear that each case will turn on its own circumstances.

Public authorities should also be aware that their own internal labels will not be determinative of matters; it is not possible to, in the words of Judge Jacobs “label [your] way out of [your] duty to disclose.” Labels such as “draft or preliminary thoughts may, or may not, reflect the reality.” [para 32]

Counsel for Highways England is recorded as having emphasised legal certainty and its importance. Judge Jacobs accepts that his decision will not produced legal certainty in the way that was possibly envisaged by Counsel for Highways England. Judge Jacobs notes that its application will not be easy; however, issues of judgement are involved and that limits what can be achieved.

In deciding that the First-Tier Tribunal had not erred in law, Judge Jacobs took the view that, when reading the First-Tier Tribunal’s reasoning as a whole; its approached accorded with his analysis of the operation of the exception. The First-Tier Tribunal “understood that it was exercising a judgment on whether the information requested could now properly be considered as independent from the continuing work on the Expressway.”

So, what have we learned? Judge Jacobs has certainly gone through the exception carefully and produced what he considers to be the best that can be achieved in terms of defining the scope of the exception in Regulation 12(4)(d). Its scope is narrow, but not so narrow as to defeat the policy intention of providing a space for public authorities to think in private; however, its imprecise nature should not be taken as giving public authorities cart blanche. Each and every case will turn on its own circumstances and a degree of judgement is involved in determining whether the exception will apply or not.

There are also some useful reminders (for now) about the need to utilise EU law principles when interpreting the EIRs. There is also a useful reminder, in paragraph 6, about the approach that the Upper Tribunal adopts when considering an appeal. It is unlike the First-Tier Tribunal; it is not conducting a re-hearing of the case. The Appellant has to show that the First-Tier Tribunal erred in law. We are also reminded that the nature of the language of the provision has to be taken into account when considering legal certainty; it is therefore not always possible to give a precise exposition of the scope of a provision – sometimes, it really does just come down to a matter of judgement.

Alistair Sloan

We are able to provide advice in connection with a wide range of information law matters, including Freedom of Information Act/Environmental Information Regulations appeals. If you would like advice and assistance on any of these matters then please contact Alistair Sloan on 0141 229 0880 or by E-mail. You can also follow our dedicated information law account on Twitter.

Environmental Information request appeals and prohibitive costs: new Court of Session rules

The Court of Session has made new rules with a view to preventing court actions relating to the environment from being “prohibitively expensive”. The new court rules introduced orders which will be known as “prohibitive expenses orders”. These new rules are of relevance to readers of this blog as they will apply to appeals against decisions of the Scottish Information Commissioner to the Court of Session where the decision being appealed relates to a request for environmental information under the Environmental Information (Scotland) Regulations 2004 (EIRs).

The EIRs give effect in Scotland (in relation to environmental information held by Scottish public authorities – environmental information held by UK public authorities is covered by the Environmental Information Regulations 2004) to Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information. [pdf] This European Directive in turn gives effect to the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [pdf] (‘the Aarhus Convention’). Article 9 of the Aarhus Convention requires that individuals have access to justice in respect of environmental matters and that this should not be “prohibitively expensive”.

With some of the background to these new rules (briefly) explained, what exactly do these new rules mean? In short, they mean that anyone who brings an appeal to the Court of Session against a decision of the Scottish Information Commissioner in respect of a request for environmental information (whether or not the requester knew at the time of making their request that the request was a request for environmental information or not – knowing exactly what is environmental information under the EIRs can be very difficult) can make a motion to the court to have their liability in expenses limited should they ultimately be unsuccesful in their appeal.

A person bringing an appeal to the Court of Session against a relevant decision of the Scottish Information Commissioner will be required to make a motion for a prohibitive expenses order as soon as is reasonably practicable after becoming aware that the appeal is defended. In essence, an appellant will need to make a motion relatively quickly after Answers to the Note of Appeal are intimated to them and any unreasonable delay in doing so is likely going to have an impact upon whether the court makes an order.

The new rules provide that proceedings are to be considered prohibitively expensive if the costs and expenses likely to be incurred by the applicant are likely to exceed the financial means of the party or where are objectively unreasonable having regard to six factors set out in the rules; including whether the applicant has reasonable prospects of success; the complexity of the relevant law and procedure; and whether the case is frivolous.

Where the court is satisfied that the proceedings are prohibitively expensive, it must make a prohibitive expenses order (in otherwords, if the test is met then the court has no discretion over whether an order is made or not). The order will limit the appellant’s expenses to the respondent to £5,000 (or such other sum as may be justified) and will limit the respondent’s expenses to the appellant to £30,000 (or such other sum as may be justified). It therefore seems as though it will be possible for a requester who intervenes in an appeal brought by the scottish public authority to apply to have their liability capped in line with the £5,000 figure rather than the £30,000. It also seems as though the court will have the discretion to cap the laibility at a lower or higher figure than £5,000 or £30,000.

It remains to be seen just how these new rules will operate in practice, but this is a good step forward. Appeals to the Inner House of the Court of Session are expensive and an unsuccessful appellant could face an expenses bill of many tens of thousands of pounds (in addition to their own legal fees). These new rules do not affect the availability of legal aid (or the rules that apply to expenses where an unsuccessful appellant is in receipt of legal aid). However, these rules will help people who are financially ineligible for legal aid, but are still financially unable to risk losing an appeal. Furthermore, legal aid can be difficult to obtain and therefore this provides a potential route for a person whose application for legal aid has been refused (although, it remains to be seen whether the timeframe for making a motion for a “prohibitive expenses order” is flexible enough to deal with situations where someone has applied for, but ultimately been refused, legal aid). It also remains to be seen how the court will deal with an application for a prohibitive expenses order where legal aid has been refused on the basis of the merits of the appeal rather than on financial eligibility (the tests do, at first blush, appear to be different with perhaps a lower threshold applying to the question of merits in a motion for a prohibitive expenses order as opposed to an application for legal aid).

These new rules might see an increase in EIR appeals to the Court of Session (indeed, we might see an appeal be brought – none have ever been brought, at least so far as I’m aware, in the almost 14 years that people have been able to request environmental information in Scotland). People who are unable to financially risk losing an appeal will now be able to know what their liability in expenses will be in advance of expenses mounting up. This could have financial implications for the Scottish Information Commissioner if his office starts to see an increase in litigation and also for Scottish public authorities who may ultimately decide to become involved in appeals brought by requesters against decisions of the Commissioner.

Alistair Sloan

If you would like advice or assistance in respect of requests for environmental information or any other information law matter, you can contact Alistair Sloan on 0141 229 0880 or by E-mail.

Update 28/11/2018 – The Scottish Information Commissioner’s office has advised that there was one appeal brought against one of their decisions relating to a request for environemntal information. The appeal was brought by a public authority and was abandoned by the public authority.