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  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.
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.