Tag Archives: 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.

Information Law Review of 2018

It does not seem as though it was a year ago since I sat down to write my review of Information Law in 2017 and to have a brief look ahead into 2018; but somehow we now appear to be in 2019. It was always going to be the case that 2018 was going to be a big year for information law; with the General Data Protection Regulation becoming applicable on 25th May 2018. The 25th May 2018 came and went without the millennium bug style apocalypse that seemed inevitable from the amount of sensationalist writing that was taking place in late 2017 and early 2018.

My review of 2017 started off with the English and Welsh High Court decision on vicarious liability for data protection breaches in Various Claimants v WM Morrisons Supermarket PLC  [2017] EWHC 3113 (QB)This case rumbled on in 2018 and it was considered by the Court of Appeal. The Court of Appeal heard the appeal and (in remarkably quick time) dismissed the appeal. It is understood that Morrisons have sought permission to appeal to the Supreme Court and if permission is granted it is possible that it will feature in a review of Information law in 2019.

In February, the English and Welsh High Court issued an interesting privacy judgment when it considered an action for compensation arising out of “Can’t Pay? We’ll Take it Away’; a fly-on-the wall documentary following High Court Enforcement Officers in their work enforcing court orders relating to debt and housing cases. The Court had the tricky job of balancing the privacy rights of individuals against the rights of television companies in respect of freedom of expression; however, the High Court decided that the balance in this particular case fell in favour of the claimant’s privacy rights. The High Court’s decision was appealed to the Court of Appeal; looking specifically at the issue of quantifying the level of damages. That appeal was heard by the Court of Appeal in early December and should provide useful guidance on calculating damages in the privacy sphere.

Facebook, Cambridge Analytical and Aggregate AIQ all featured quite heavily in 2018 in terms of privacy and data protection matters. Facebook was served with a monetary penalty in the amount of £500,000 for breaches of the Data Protection Act 1998 and Aggregate AIQ was also the recipient of the first Enforcement Notice under the Data Protection Act 2018 (which was narrowed in scope by the Information Commissioner following an appeal by AIQ; which was subsequently dropped). Facebook lodged an appeal against the Monetary Penalty Notice with the First-Tier Tribunal (Information Rights) in November 2018. If and when a decision is reached by the Tribunal in respect of that appeal, it will feature on this blog.

Arising out of the same wide-ranging investigation by the ICO as the Facebook penalty and the AIQ Enforcement Notice was an Information Notice served on the United Kingdom Independence Party (UKIP), which was appealed to the First-Tier Tribunal (Information Rights). The Tribunal dismissed the appeal by UKIP in July.

In April there was yet another important decision from the English and Welsh High Court in respect of Privacy and Data Protection. A little over four years after the European Court of Justice decision on the Right to Be Forgotten in Google Spain, Mr Justice Warby handed down his judgment in NT1 & NT2 v Google; this represented the first decision of a UK Court in respect of the Right to Be Forgotten. An appeal was lodged in respect of this case and was due to be heard just before Christmas; however, it was reported that the case was settled on the day of the appeal.

The issue of compensation to identifiable third parties in the context of data protection breaches was considered by the English and Welsh Court of Appeal. This case adds to the helpful privacy and data protection case law emanating from the English and Welsh courts.

Another interesting development that we saw during the course of 2018 was a director being disqualified indirectly in connection with privacy and data protection matters. It does show that directors can be held personally liable for privacy and data protection transgressions of limited companies. This was underlined by the amendments to the Privacy and Electronic Communications (EC Directive) Regulations 2003 which now enable the Commissioner to serve a monetary penalty on directors (and others associated with companies) in certain circumstances.

In Scotland, the Court of Session made new rules which should make appealing decisions of the Scottish Information Commissioner in respect of requests for environmental information more financially viable.

Litigation in respect information law matters in Scotland remains limited. The majority of litigation on these areas arises out of England and Wales. Perhaps in 2019, we will begin to see more litigation in Scotland on information law matters. Hopefully the new rules in the Court of Session will see more appeals in respect of the Environmental Information (Scotland) Regulations 2004 and hopefully the introduction of Group proceedings in the Court of Session through the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 will help with an increase in data protection and privacy litigation in Scotland.

In terms of 2018 Scottish cases, not long before Christmas the Court of Session treated us to a judgment in an appeal concerning vexatious requests under the Freedom of Information Scotland Act 2002. Beggs v Scottish Information Commissioner considered the correct approach to be taken when applying section 14(1) of the Freedom of Information (Scotland) Act 2002.

Looking ahead to 2019; the big issue on the horizon is Brexit. Much of what is discussed on this blog as “information law” derives from European law and so Brexit will likely have an impact upon that. We are still unsure as to the terms that we will be leaving on. A withdrawal Agreement has been negotiated between the European Union and the United Kingdom; however, there is  still a way to go with that – and it looks quite likely that the UK Parliament will rejected the Withdrawal Agreement in its current form. If we end up leaving with no Withdrawal Agreement in place then this will cause considerable difficulties for UK business which rely upon the transfer of personal data from elsewhere within the European Union; it will also cause problems for public bodies.

In terms of making the law work after Brexit, we were treated by the Government (in between Christmas and New Year) to a draft of The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019. These Regulations will make changes to the GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 in light of the United Kingdom no longer being a member of the European Union. I will, of course, look at these draft Regulations in more detail soon.

I will attempt to address information law matters as they unfold in 2019 on the Information Law Blog from Inksters Solicitors.

Alistair Sloan

If you would like advice or assistance with Privacy and Data Protection matters or with UK and Scottish Freedom of Information requests contact Alistair Sloan on 0141 229 0880 or you can E-mail him.


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.

Registered Social Landlords and FOI

Yesterday, the Scottish Government began a consultation on legislation to formally designate Registered Social Landlords (RSLs) as Scottish public authorities for the purposes of the Freedom of Information (Scotland) Act 2002 (“FOISA”).  The draft Order being consulted on proposes a commencement date of 1st April 2019.

This is not an unexpected development in the field of information law.  In December 2016 the Scottish Government consulted on the principle of designating RSLs as public authorities for the purposes of FOISA.  It has been widely anticipated that RSLs would be designated as a public authority for the purposes of FOISA.

A designation as a public authority for the purposes of FOISA will have ramifications for RSLs beyond the obvious need to comply with FOISA and being under the regulatory oversight of the Scottish Information Commissioner.  It will also have implications for RSLs in respect of how they implement the General Data Protection Regulation (“GDPR”), which becomes applicable from 25th May 2018.

There are a number of aspects of the GDPR which are directed towards public bodies.  The Data Protection Bill currently before the UK Parliament defines what a public body is for the purposes of the GDPR.  Clause 6 of the Bill provides that a body which is designated as a Scottish public authority for the purposes of the FOISA is a public body.  This will mean that RSLs will have to appoint a Data Protection Officer; even although many of them would not have had to before this decision was taken by the Scottish Government.

It also has implications for the grounds upon which they can legitimately process personal data.  Processing of personal data for the purpose of pursuing a legitimate interest of the controller is permissible under the GDPR.  However, the GDPR goes on to provide that public bodies cannot rely upon legitimate interest as a ground of processing in performance of their tasks.  Therefore, any RSL that has been preparing for the GDPR on the basis that they will be able to process personal data on the legitimate interests ground will have to re-evaluate its processing of personal data ahead of its designation as a public authority for the purposes of FOISA.

It is worthy of note, simply for interest, that the Data Protection Bill proposes giving the Secretary of State the power to make regulations which state that a public body is not in fact a public body for the purposes of the GDPR.  However, there has been no indication that the Secretary of State intends on making use of this power or how the power is intended to be used; therefore, it is probably advisable not to work on the basis that a RSLs will be declared not to be public bodies for the purposes of the GDPR.

Another possible implication for RSLs is in relation to the Environmental Information (Scotland) Regulations 2004 (“the EIRs”).  The Scottish Information Commissioner has already previously decided that RSLs are public authorities for the purpose of these regulations, which govern access to environmental information.  The Housing (Amendment) (Scotland) Bill may have implications for the basis upon which the Commissioner concluded that RSLs were a public authority for the purposes of the EIRs.  If it does, there may be a gap where RSLs are not public authorities for the purposes of EIRs.  Once they become designated as a public authority for the purposes of FOISA, they will automatically become a public authority for the purposes of the EIRs as well.

Alistair Sloan

If you would like advice or assistance in respect of a freedom of information or data protection matter then contact Alistair Sloan on 0345 450 0123.  Alternatively, you can send him an E-mail.

More is less and less is more

On 30th October 2017 the First-Tier Tribunal (Information Rights) promulgated its decision in McGoldrick v The Information Commissioner; the Tribunal’s decision made two points which it is worth considering.  The request for information in question was made to HM Treasure concerning the Mersey Tunnels; the full terms of the request for information are set out in the Tribunal’s decision.

The first point relates to the use of section 12 of the Freedom of Information Act 2000 where some of the information that may fall within the scope of the request is likely to be environmental information; and the second is on the duty of a public authority to provide advice and assistance.

On the first issue, the Tribunal (at paragraph 12) states that it

“agrees with the Information Commissioner that the appellant’s request could cover both non-environment and environmental information, for the purposes of regulation 2(1)(c) but that it would defeat the purpose behind section 12 and regulation 12(4)(d) if a public authority were obliged to collate the requested information in order to ascertain what information fell under either FOIA or the EIR. We agree, therefore, that HM Treasury was correct to consider the request under section 12, even though it might include some environmental information.”

The Tribunal considers that it is appropriate for an authority to not separately identify environmental information and deal with that under the Environmental Information Regulations 2004 where there is a substantial volume of information which covers both environmental and non-environmental information.  It seems that the Tribunal is of the view that there is no need to issue a refusal notice citing Regulation 12(4)(b) [although the Tribunal refers to Regulation 12(4)(d), but this seems as though it may be a typographical error] where a request is going to exceed the appropriate limit and it is likely that there is going to be environmental information within the ambit of the request.

On the second issue, the Tribunal decided that, on the facts of the present case, that HM Treasure did not comply with its obligation to provide adequate advice and assistance and overturned the Commissioner’s decision that it had.  In this case, HM Treasure told the requester that he might like to consider refining his request by reducing the amount of information requested.  The Commissioner considered that such a suggestion was sufficient in order to discharge the authority’s duty to provide advice and assistance.

At paragraph 18 of the Tribunal’s decision it stated:

“Given the widespread nature of computer-driven searches for information in connection with FOIA requests, it is, we consider, reasonable to expect large, sophisticated organisations, such as HM Treasury, to point out to requesters how the most thorough search is likely to exceed the relevant financial limit under the Regulations made by reference to section 12, and to suggest a reformulation of the request in terms specific to computerised searches. Accordingly, if HM Treasury had asked the appellant to reformulate his request by reference to emails and documents containing both the terms “Mersey tunnel” and “toll”, the appellant may well have reformulated his request.”

The Tribunal appears to be suggesting that a large public authority may have to go a bit further than a smaller authority in order to discharge its duty to provide advice and assistance.  It appears that, in certain cases, it may be necessary for a public authority to not only suggest that a requester reformulate their request but rather to go further and actually suggest ways in which it could be reformulated; especially when computer-driver searches for information are involved.

This certainly does fit with the way in which the legislation has been drafted; Section 12(1) of the Freedom of Information Act 2000 does include “so far as it would be reasonable to expect the authority to do so” within its terms.  So, where an authority is issuing a refusal notice under Section 12 of the Freedom of Information Act 2000 authorities, especially larger ones, ought to consider whether they are capable of suggesting how a request could be refined, not just that the requester may wish to consider refining it.

Alistair Sloan

We are able to provide advice and assistance in connection with a range of Freedom of Information matters, including appeals against decisions of both the Scottish and UK Information Commissioners.  If you would like to do discuss a Freedom of Information, or any other Information Law, matter with us then you can contact Alistair Sloan on 0345 450 0123.  Alternatively, you can send him an E-mail.