Birkett v The Department for the Environment, Food and Rural Affairs

When a public authority has initially relied upon a particular exception when refusing to release environmental information under the Environmental Information Regulations 2004 (“the Regulations”) may it rely upon a different exception or exceptions in proceedings before the Information Commissioner (“the Commissioner”) and/or the First-Tier Tribunal (General Regulatory Chamber) (Information Rights) (“the Tribunal”)?

In this case the Tribunal decided that the Respondent could not rely on two new exceptions without the permission of the Tribunal, which it withheld. On appeal, the Upper Tribunal (Administrative Appeals Chamber) decided that the Respondent was entitled as of right to rely on the two new exceptions [2011] UKUT 39 (AAC). The Appellant appeals against that decision. He submits that a public authority may not rely on a new exception or exceptions in proceedings before the Commissioner and the Tribunal; it may rely only upon the exception or exceptions which were specified in its reasons for refusing the request.

The Regulations implement Council Directive 2003/4/EC on public access to environmental information (“the Directive”). The Appellant does not contend that, read purely as domestic statues, there is any provision in either the Regulations, or the enforcement and appeals provisions in the Freedom of Information Act 2000 (“the Act”) which are applied by the Regulations, which prohibits reliance upon a new exception. Mr. Facenna submits on behalf of the Appellant that the Regulations must be interpreted in a purposive manner, and that permitting a public authority to rely upon a new exception before the Commissioner or the Tribunal would be contrary to the underlying purpose of the Directive. He relied on two judgments of the Court of Justice of the European Union (“CJEU”): Case C-233/00 Commission v France [2003] ECR 1-6625, and Case C-186/04 Housieaux v Délégués du conseil de la Région de Bruxelles – Capitale [2005] ECR 1-3299. The focus is therefore upon the Directive, and an outline of the Regulations will suffice for present purposes.

The Regulations impose a duty upon a public authority that holds environmental information to make it available on request (reg. 5). That duty is subject to a number of exceptions (reg. 12). A refusal of a request for environmental information must be made in writing as soon as possible and no later than 20 days (or 40 days in a complex case) after the date of receipt of the request (reg. 14). The refusal must specify the authority’s reasons for not disclosing the information required including any exception relied on (reg. 14(3)). A person whose request has been refused may ask the authority to review its decision (reg. 11). The review decision must be notified as soon as possible, and not later than 40 days after receipt of the request for a review (reg. 11). If the refusal to disclose is maintained the person whose request has been refused (“the complainant”) may apply for a decision from the Commissioner (section 50 of the Act as applied by reg. 18). The complainant or the public authority may appeal to the Tribunal against the Commissioner’s decision notice (section 54 of the Act as applied by reg. 18). There is a further appeal on a point of law from the Tribunal to the Upper Tribunal.

The Appellant is the founder of the cross-party Campaign for Clean Air in London. On the 22^nd January 2009 he made a request for information from the Respondent. The request related to discussions between the previous Government and the Mayor of London on matters of air pollution and the UK’s compliance with EU air quality laws. It is common ground that the information requested is environmental information as defined in the Regulations and the Directive.

On 1^st April 2009 the Respondent refused the request relying on the exception contained in regulation 12(4)(e):

“ ….a public authority may refuse to disclose information to the extent that - …(e) the request involves the disclosure of internal communications.”

On 1^st May 2009 the Appellant requested an internal review. On 15^th September 2009 the Respondent maintained its decision, relying on the exception in regulation 12(4)(e).

On 3^rd October 2009 the Appellant asked the Commissioner for a decision under section 50 of the Act. In a decision notice dated 2^nd November 2009 the Commissioner, without having invited any representations from the Respondent, ordered the Respondent to disclose the information. The Respondent appealed to the Tribunal. In its Notice of Appeal dated 1^st December 2009 the Respondent continued to rely on the exception in regulation 12(4)(e), but to the extent that the disputed information comprised information in respect of which legal advice privilege could be maintained, it also relied upon the exceptions in regulation 12(5)(b) and (d):

“…a public authority may refuse to disclose information to the extent that its disclosure would adversely affect - … (b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal nature”…. (d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law”.

Much of the disputed information had been released in three tranches, in December 2009, March 2010 and April 2010, prior to the hearing before the Tribunal on 11^th May 2010. The Tribunal concluded that:

“There is no obligation on the Tribunal to consider any exception relied upon by a public authority that had not previously been relied upon; exceptions or exemptions raised for the first time before the Tribunal should only be considered if there is a reasonable justification” (para. 27).

The Tribunal found that there was no reasonable justification for the Respondent “overlooking” the two new exceptions in regulation 12(5) (b) and (d), and therefore declined to consider whether the remaining disputed information fell within those exceptions (paras. 33 and 34).

The Respondent appealed to the Upper Tribunal. Its appeal was heard together with an appeal by the Commissioner against a decision by a differently constituted Tribunal that the Home Office was entitled to rely as of right on new exemptions in respect of non-environmental information falling within the Act. At the hearing of the appeals before the Upper Tribunal the Respondent contended that it was entitled as of right to rely on the new exceptions/exemptions; the Appellant contended that a public authority could not lawfully rely on new exceptions/exemptions before the Commissioner and the Tribunal; and the Commissioner adopted a middle course: while there was no right to rely on new exceptions/exemptions, a public authority could be permitted to do so at the discretion of either the Commissioner or the Tribunal.

The Upper Tribunal accepted the Respondent’s submissions and rejected both the Appellant’s and the Commissioner’s submissions. The Upper Tribunal first considered the position under the Act in the context of the Home Office appeal. Having concluded that the Home Office was entitled to rely as of right on new exemptions, the Upper Tribunal considered whether the position was different under the Regulations. Having noted that the Directive gives effect to the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (“the Convention”), the Upper Tribunal considered the relevant provisions of the Directive and the Regulations and the two decisions of the CJEU referred to above, and concluded that they did not justify, still less require, a conclusion that was different from that which resulted from an analysis of the Act.

The Commissioner did not appeal against the Upper Tribunal’s decision in the Home Office case, and he has not participated in the Appellant’s appeal. The course taken by the Commissioner is perfectly understandable, but it has two consequences which are relevant for the present appeal:-

As noted by the Upper Tribunal, the Directive implements the access to environmental information provisions contained in the Convention, in particular Article 4, Access to Environmental Information, and Article 9 Access to Justice. Recital (1) of the Directive explains the purpose of giving the public access to environmental information:

“to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. To this end the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted.”

Mr. Facenna also referred to recital (5) which refers to the need for community law to be compliant with the Convention, and to recitals (13), (16) and (19). It is unnecessary to set out the terms of those recitals, since for present purposes they add nothing to the relevant Articles of the Directive, which are as follows:

Article 3

Access to environmental information upon request

“1.

Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest

2.

Subject to Article 4 and having regard to any timescale specified by the applicant, environmental information shall be made available to an applicant:

(a)

as soon as possible or, at the latest, within one month after the receipt by the public authority referred to in paragraph 1 of the applicant’s request; or

(b)

within two months after the receipt of the request by the public authority if the volume and the complexity of the information is such that the one-month period referred to in (a) cannot be complied with. In such cases, the applicant shall be informed as soon as possible, and in any case before the end of that one-month period, of any such extension and of the reasons for it.

Article 4

Member States may provide for a request for environmental information to be refused if:

the information requested is not held by or for the public authority to which the request is addressed. In such a case, where that public authority is aware that the information is held by or for another public authority, it shall, as soon as possible transfer the request to that other authority and inform the applicant accordingly or inform the applicant of the public authority to which it believes it is possible to apply for the information requested;

the request is manifestly unreasonable;

the request is formulated in too general a manner, taking into account Article 3(3);

the request concerns material in the course of completion or unfinished documents or data;

the request concerns internal communications, taking into account the public interest served by disclosure.

Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:

the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;

international relations, public security or national defence;

the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;

the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;

intellectual property rights;

the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law;

the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;

The protection of the environment to which such information relates, such as the location of rare species.

A refusal to make available all or part of the information requested shall be notified to the applicant in writing or electronically, if the request was in writing or if the applicant so requests, within the time limits referred to in Article 3(2)(a) or, as the case may be, (b). The notification shall state the reasons for the refusal and include information on the review procedure provided for in accordance with Article 6.

Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive.

In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.”

Mr Facenna accepted that a public authority could rely upon a new exception at the reconsideration stage under Article 6(1) (internal review under regulation 11 of the Regulations). He submitted that once the matter progressed beyond reconsideration to administrative review under Article 6(1), or to legal review under Article 6(2), there could be no reliance upon a new exception. He acknowledged that no words to that effect could be found in the Directive, but he submitted that it was necessary to adopt such an interpretation in order to provide the complainant with an effective remedy. The Directive did not simply impose a duty to make environmental information available upon request. Recognising that the public utility of environmental information might be much diminished if its release was delayed, the Directive required release, or a refusal to release with reasons, within a tight timescale, at most a month, or two months in a complex case: see Articles 3(2) (a) and (b) and 4(5). It was essential that the reasons for refusal, and not merely a refusal, were provided within this timescale because, without the reasons for refusal, the person seeking the information would not know whether there was a case for seeking an administrative review under Article 6(1) or a legal review under Article 6(2). If the public authority was able to rely on new exceptions at the administrative review and/or the legal review stages under Article 6 it would render those remedies ineffective.

In support of these submissions Mr. Facenna relied upon the two decisions of the CJEU referred to above. Both of those cases were concerned with the earlier Council Directive 90/313/EEC which was repealed and replaced by the Directive on 28^th January 2003. The earlier Directive did not (unlike Article 4.5 in the Directive) expressly require that the reasons for a refusal be notified within the two months period for a response to the request. Having regard to “the spirit of the Directive” the Court concluded in Commission v France that an interpretation of the earlier Directive which did not lay down any precise period within which reasons for refusal had to be given “would deprive Article 3(4) of Directive 90/313 of a substantial part of its effectiveness”. (para. 117). Mr Facenna drew our attention to paragraphs 94-96 of the Advocate General’s Opinion in that case:

“94.

In addition, a time-limit within which the public authorities must respond, such as that laid down in Article 3(4) of the Directive, is particularly conducive to legal certainty because it ensures that the person requesting the information is not left for an indefinite length of time in the dark as regards the outcome of his request and his legal position. In my view, this aspect merits special attention precisely in the context of a directive which is designed to guarantee public access to information held by the public authorities.

95.

In that regard it should be assumed that the above mentioned requirement of legal certainty also arises in relation to the actual reasons for a refusal, especially where account is taken of the fact that Article 4 of the Directive provides for the possible review of both positive and negative responses issued by the public authorities and that the lawfulness of those responses must be assessed by reference to the reasons on which they are respectively based.

96.

An interpretation under which a time-limit is not considered to apply to the requirement under Article 3(4) of the Directive to give reasons in the event of a public authority’s refusal is not therefore compatible either with the spirit and purpose of that provision or with the Directive as a whole.”

A similar point was made by the Advocate General in the Housieaux case:

“32.

The right to good administration creates for the administration an obligation to give reasons for its decisions. Such a statement of reasons is not merely a general expression of the transparency of the administration’s actions, but is also intended, in particular, to give the individual the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in his applying to the courts. There is therefore a close connection between the obligation to give reasons and the fundamental right to effective legal protection.

33.

Accordingly, it would be incompatible with both the right to good administration and the fundamental right to effective legal protection if a public authority could simply let the two-month time-limit provided for in Article 3(4) of Directive 90/313 expire and for this to be deemed to constitute a lawful refusal of a request for information on the environment. Logically, therefore, the Court has held that the individual must automatically be informed of the reasons for the refusal of his request, not necessarily at the same time as the actual refusal but in any event within the two-month time-limit.

37.

If a public authority were permitted simply to let the time-limit prescribed for processing a request made to it expire rather than responding to it expressly, the obligation to give reasons which stems from Community law would be rendered meaningless. After all, contrary to the view taken by the defendants, a public authority’s failure to respond cannot as such provide any explanation as to whatever reasons there may be for authorising or refusing the action requested. Thus under Article 3(2) and (3) of Directive 90/313, a request for information on the environment can be refused for a wide variety of reasons. The same applies to any refusal of access to documents under Article 4 of Regulation No 1049/2001. Indeed, a decision on the compatibility with the common market of a concentration or a measure of State aid generally requires the assessment of complex economic issues. The reasons which prompted the public authority in a particular case not to respond within the time-limit, if indeed it had formed an opinion at all within that period, could only be guessed at by those concerned by the decision (the applicant or third parties). Reliance on guesswork, however, would not satisfy the right of members of the public to good administration and their fundamental right to effective legal protection.” (references omitted)

The Court in the Housieaux case noted with approval a further point made by the Advocate General: that the value of environmental information “depends to a large extent on the fact that individuals are able to obtain it as quickly as possible” (para. 28). It concluded that the two month time-limit in Article 3(4) of Directive 90/313 was mandatory (para. 29), and said:

“35.

It therefore follows from the judgment in Commission v France, cited above, that whereas, so as to grant effective judicial protection in accordance with Article 4 of Directive 0/313, the said directive does not preclude the fiction of implied refusal of a request for access to information where there has been a failure to respond within two months, by virtue of Article 3(4) of the directive it is unlawful for such a decision not to be accompanied by reasons when the two-month time-limit expires. In those circumstances, whilst the implied refusal does constitute a ‘response’ for the purposes of Article 3(4) it must be regarded as unlawful.

36.

Accordingly, the answer to the third question must be that Article 3(4) of Directive 90/313, in conjunction with Article 4 thereof, does not preclude, in a situation such as that in the main proceedings, national legislation according to which, for the purposes of granting effective judicial protection, the failure of a public authority to respond within a period of two months is deemed to give rise to an implied refusal which may be the subject of a judicial or administrative review in accordance with the national legal system. However, by virtue of Article 3(4) it is unlawful for such a decision not to be accompanied by reasons when the two-month time-limit expires. In those circumstances, the implied refusal must be regarded as unlawful.”

These two judgments are undoubtedly authority for the proposition that the time limits for notifying a refusal and for stating the reasons for refusal (including the exception or exceptions relied upon) are mandatory. A failure to give reasons within the time limit is unlawful. However, as Mr Swift pointed out, in neither of the cases did the CJEU have to consider what would be the consequence of such unlawfulness. On the Appellant’s approach, a failure to give any reasons within the timescale would mean that, unless the omission was remedied on reconsideration under Article 6(1) (regulation 11 of the Regulations), no exception could subsequently be relied upon. Whatever the reason for the omission, and however grave the effect on the interest protected by the exception that might have been relied upon, the disputed information would have to be released.