Adam Davies v The Information Commissioner

Air quality in London and its impact on the health of residents has been of concern for many years. Charles Dickens repeatedly mentioned it in his novels. In Chapter 3 of Little Dorrit (1855-1875) he described an interior in Cheapside “the Plagues of Egypt, much dimmer for the fly and smoke plagues of London, were framed and glazed upon the walls”. The Great Smog (December 1952) killed of the order of 10,000 people in London and led to the Clean Air Act 1956 which contributed to the reduction in domestic coal burning and a lessening of the impact of sulphur dioxide on human health.

Other measures followed including Directive 2008/50/EC on ambient air quality and cleaner air for Europe. The European Commission brought proceedings against the UK in 2018 for failure to implement measures to achieve the required improvements in air quality with levels of nitrogen dioxide significantly higher than permitted, including in London.

The environmental charity ClientEarth has repeatedly litigated against the UK government in an attempt to secure compliance. The opening lines of the judgement of Garnham J of 21 February 2018 in the third of these challenges ([2018] EWHC 315 (Admin)) exemplify the problem:

“Introduction

On 26 July 2017 the Department for Environment, Food and Rural Affairs ("DEFRA") published the "UK plan for tackling roadside nitrogen dioxide concentrations" and associated documents (hereafter "the 2017 Plan"). This was the third attempt by the UK Government to provide an Air Quality Plan ("AQP") that met its obligations in law.

The first AQP, produced in 2011, was quashed by order of the Supreme Court in 2015. The Government was made the subject of a mandatory order requiring the Secretary of State to prepare new air quality plans in accordance with a defined timetable (see R (on the Application of ClientEarth) v The Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28, 4 All ER 724). The second AQP, produced in purported compliance with the order of the Supreme Court, was published on 17 December 2015.

In a judgment dated 2 November 2016 ([2016] EWHC 2740 (Admin), ("the November 2016 judgment"), I held that the 2015 plan was also deficient. I made a direction that DEFRA must publish a new AQP, which complied with the relevant EU Directive and domestic Regulations, by 31 July 2017. It was in purported compliance with that order that DEFRA published the 2017 Plan.

The Claimant in these proceedings is "ClientEarth", a registered charity, whose objects include promoting and encouraging the "enhancement, restoration, conservation and protection of the environment, including the protection of human health, for the public benefit". By these proceedings, the Claimant challenges the 2017 Plan on the ground that it too failed to meet DEFRA's legal obligation. ClientEarth was also the claimant in the two previous judicial review cases. The Defendants are the Secretaries of State for Food, Environment and Rural Affair, and for Transport, and the Welsh Ministers. The Secretary of State for Food, Environment and Rural Affair has taken the lead for the Defendants in this case (and I refer to him hereafter as "the Secretary of State").

Proper and timely compliance with the law in this field matters. It matters, first, because the Government is as much subject of the law as any citizen or any other body in the UK. Accordingly, it is obliged to comply with the Directive and the Regulations and with the orders of the court. Second, it matters because, as is common ground between the parties to this litigation, a failure to comply with these legal requirements exposes the citizens of the UK to a real and persistent risk of significant harm. The 2017 Plan says that "poor air quality is the largest environmental risk to public health in the UK. It is known to have more severe effects on vulnerable groups, for example the elderly, children and people already suffering from pre-existing health conditions such as respiratory and cardiovascular conditions". As I pointed out in the November 2016 judgment, DEFRA's own analysis has suggested that exposure to nitrogen dioxide (NO2) has an effect on mortality "equivalent to 23,500 deaths" every year.”

On 17 May 2018 the European Commission referred the UK to the Court of Justice for the EU for failure to adhere to air quality standards with respect to NO2 following a reasoned opinion in February 2017.

It may be noted that the Mayor of London was a participant in the 2018 litigation. Plans for an Ultra Low Emissions Zone (ULEZ) which would introduce a charge for vehicles which were likely to exceed certain emissions thresholds were announced by the then Mayor of London in 2015 with the intent that they take effect in 2020. The zone was introduced in 2019 by Sadiq Khan who became mayor in 2016. The zone initially covered Central London, the same area as the existing London congestion charge; in 2021, the zone was extended to cover the area within the North Circular and South Circular roads. A further extension was announced in early 2022 and the Mayor confirmed the statutory order on 22 November 2022.

This expansion was controversial and in early 2023 four outer London boroughs and Surrey County Council sought judicial review of the decision. These proceedings challenged the decision arguing that was not permitted by Schedule 23 of the Greater London Authority Act (the statutory basis for the charging scheme), arguing that the public consultation did not provide sufficient information on the number of non-compliant vehicles in the expanded zone and the compensation scheme for scrapped vehicles was defective. Another challenge was launched by White on 23 February (just within the three month period allowed by the Civil Procedure Rules). The case was crowd-funded by a group to which the Appellant was linked. This claim was struck out in part and the remainder stayed pending the decision in the lead case brought by the boroughs. That case (Hillingdon) was heard on 4/5 July and dismissed in a judgement of Swift J on 28 July. Cockerell J dismissed the White case on 14 September. The Appellant told the tribunal that an application is being made to the Court of Appeal to restore the case for hearing.

On 7 March 2023 the Appellant wrote to the Greater London Authority (GLA) with an information request:

“To use your own data quoted in the Evening Standard

(https://www.standard.co.uk/news/london/sadiq-khan-ulez-cameras-payment-chargescheme- b1064837.html), you say 27,000 tons CO2 will be saved. That is dwarfed by the 4.7 million tones of carbon emitted by replacing the 200,000 cars that you say will need to come off the road. Please can you therefore:

1.

Explain where your 27,000 tonnes figure comes from.

2.

Forced replacement of 200,000 roadworthy cars at an average of 30 tonnes CO2 release per manufacture (excluding import, etc) is 6m tons CO2 emitted into the atmosphere. Is this taken into account in your figures?

3.

Likewise, have you taken into account the cost of transporting the scrap metal to

Turkey, disposal of batterie, or emissions from import transportation?

4.

Your own figures suggest only 135kg (200,000/27,000,000) of CO2 savings per

scrapped car. How do you square that with the (avg) 30 tonnes CO2 emitted per

manufacture?”

On 4 May the GLA replied:

“Please find below the information we hold within the scope of your request.

The principal aim of the ULEZ is to reduce harmful emissions from road transport by disincentivising the use of older, more polluting vehicles. The ULEZ specifically targets the air pollutants that are most harmful to human health: nitrogen dioxide (NO2) and particulate matter (PM). In addition to incentivising people to use less polluting vehicles, the London-wide ULEZ will also encourage a shift to active, efficient and sustainable modes of transport, thus delivering a reduction in carbon emissions.

The evidence base and expected outcomes of the proposals were set out in the key

consultation documents, which are available on Transport for London’s consultation page: https://haveyoursay.tfl.gov.uk/cleanair.

Modelling was undertaken by Imperial College London working with TfL in order to assess the air quality impacts the ULEZ expansion could have. The result of this work is summarised in the key consultation document (‘Our proposals to help improve air quality tackle the climate emergency and reduce congestion by expanding the ULEZ London-wide and other measures’) and the Integrated Impact Assessment undertaken by Jacobs Ltd. (‘London-wide ULEZ Integrated Impact Assessment (ULEZ Scheme IIA)’). Section 5.2.1 of the ULEZ Scheme IIA summarises the expected carbon impacts of the policy. Appendix B of the consultation document provides information on the modelling methodology in further detail. There is no need to switch to a brand-new or electric vehicle to meet the ULEZ standards.

Compliant vehicles have been widely available since 2006 meaning many people are likely to switch to a used, rather than new, vehicle. As set out in the scheme IIA, for scrapped vehicles there is a target for a minimum of 95 per cent recycling and recovery under the “End of Life (ELV)” directive.

The Mayor will continue to work with TfL and the boroughs to invest in policies to encourage and enable more walking, cycling and public transport use which will further address carbon and air pollution emissions in London.”

If the Appellant had followed the link provided, the first document he would have come to was “Report to the Mayor: Proposed revision to the Mayor’s Transport Strategy (MTS)” published in October 2022, another readily available document published in May 2022 entitled “Our proposals to help improve air quality, tackle the climate emergency, and reduce congestion by expanding the ULEZ London-wide and other measures”. This extensive document (one of many) has in its contents “Updated WHO guidelines”. At page 32 it sets out WHO targets and text on the policy:

The final sections of this document are:

At the end of June 2023 the Appellant was in correspondence with the Mayor’s Office concerning the expansion of the ULEZ arrangements. On 23 June he received a reply under his chosen email title “Mayoral insults and refusal to follow the science” explaining the policy approach and providing links to a range of documents

“As I’m sure you can appreciate, the GLA is receiving a high volume of correspondence about the ULEZ. Unfortunately, this means we are not able to respond to all enquiries individually. I have set out below more information about the reasons behind the Mayor’s decision to expand the ULEZ Londonwide and the support available for Londoners.

The Mayor has decided to expand the ULEZ across all London boroughs from 29 August 2023 to tackle the triple threats of air pollution, the climate emergency and traffic congestion, and ensure five million more Londoners can breathe cleaner air.

The Mayor made this decision following a public consultation and after taking into account a detailed consultation report and integrated impact assessment. The consultation report that explains the analysis process and sets out the themes raised during the consultation is now available for everyone to read on the GLA and Transport for London (TfL) websites.”

On 28 June 2023 he sent an email complaining about the TfL website: “I spent over an hour preparing a message on your enquiry form, and tried to send it through at least 12 times. But each time received an error message. It is difficult to make complaints when your complaints procedure is not working. Below is the text of the message (your system has also lost all the formatting). Please respond with specific replies to the individual questions.” There followed a number of detailed questions.

TfL replied indicating that it had difficulty in determining the nature of his inquiry to which he replied “What is it you don't understand? I gave you a list of questions (see attached), as per the conversation I had with your team on the phone. Because your online enquiry form is not working. What other information do you need”

On 5 July 2023 he wrote:

He then sent TfL a communication addressed to himself on TfL’s own headed paper apparently signed by a senior official which the Appellant had prepared:

“Please be advised we are deliberately trying to avoid answering the question you correctly set out in your various previous communications. The reason is we don’t want you to have the information you’re legally entitled to and so are making it as difficult as possible for you to submit your request. We actually enjoy this. But the underlying issue is that we know that the information we have put into the public domain is incorrect and are very nervous you will all find out. So please keep trying and we will continue to be as obstructive as we possibly can. Good luck!”

He wrote to TfL and the Mayor’s Office on 7 July 2023 (after the oral argument in the lead case had concluded) setting out his background, his expertise, quoting from a Government report indicating one of the complexities of introducing a scheme “I am concerned as to how the ULEZ extension sits with the Government’s own Air Quality Action Group’s Exhaust Emissions from Road Transport 2021 Report findings that “There can be large differences in emissions from vehicles within the same class from different manufacturers. This has implications for interventions based only on vehicle Euro standards.” He continued with a description of his personal transport needs and then set out five pages of questions seeking information about the imminent expansion of the Ultra Low Emissions Zone. (See the Annex to this decision).

On 26 July (two days before the Hillingdon case was dismissed) TFL replied explaining that because of the breadth of the requests of 28 June and 7 July and the amount of time it would take to source, extract review and collate the requested information from a range of sources within TfL the requests were being refused on the grounds that it was manifestly unreasonable. It recognised the public interest in disclosure promoting accountability and transparency and helping address concerns about the expansion of ULEZ but the disproportionate use of resources diverted from the core functions of TfL justified refusal; however it encouraged him to narrow the scope “so that we can more easily locate, retrieve and extract the information you are seeking”.

The Appellant sought an internal review of that decision on 29 July and TfL responded on 7 August 2023:

“To confirm on the 28 June and 7 July you submitted two requests consisted of in excess for 150 individual questions. Some of your questions were broken down into several further parts making a total of 178 individual parts that required an answer.

In the reply of 26 July, it was explained that under regulation 12(4)(b) of the Environmental Information Regulations (EIR), we are not obliged to comply with a request(s) if we believe that it is ‘manifestly unreasonable’ to provide all of the information you have requested in your 2 most recent requests, as it would impose an unjustified burden and significant impact on TfL staff requiring an unreasonable diversion of limited staff resources. Your requests place an onerous burden of cost and staff resource to address when there is already a vast amount of published information available for public scrutiny concerning these issues.

To explain further, the EIR allow public authorities to refuse a request(s) for information which is manifestly unreasonable. The inclusion of the word “manifestly” means that there must be an obvious or clear quality to the unreasonableness. The purpose of the applied exception is to protect a public authority from exposure to a disproportionate burden or an unjustified level of distress, disruption or irritation, in handling information requests. This exception can be used when the cost of compliance with the request(s) would be too great or is vexatious. In assessing whether the cost or burden of dealing with a request(s) is ‘too great’, a public authority is required to consider the proportionality of the burden or costs involved and decide whether they are clearly or obviously unreasonable.

As advised a large amount of information concerning the ULEZ expansion and emissions is already publicly available either on the TfL website or via published FOI requests. This current line of information and data being sought by yourself would divert staff away from their core functions within the organisation for unjustified amounts of time and impose undue burden onto a small team of subject matter experts to undertake.”

The Appellant complained to the Information Commissioner on 7 August 2023. In his complaint he set out his position:

The Information Commissioner issued a decision notice on 18 October 2023. The Commissioner accepted TfL’s position that

The Commissioner acknowledged that the ULEZ scheme affected a large number of people and also the Appellant’s assertion that he was asking for information supporting statements that TfL had made about ULEZ which was ostensibly reasonable; but accepted TfL’s arguments about the burden and complexity of the request and that it would not all be easily accessible. He took account of the decision in the Hillingdon case which had been announced before TfL carried out its internal review which “found that the decision was legally sound and that the process that had underpinned the proposal, including a public consultation, had been thorough.” The Commissioner also found “there was and is also a significant volume of relevant information and research material in the public domain.” He concluded that the request was manifestly unreasonable and then considered, at length, the public interest arguments. In so doing he acknowledged the demand from individuals in the social media group for copies of the replies, the widespread public debate and the political salience of the issue. In the light of the crowdsourcing of questions he did not consider the request was only of interest to the Appellant nor did he accept the suggestion that the request was intended to be disruptive. However the Commissioner concluded:

The grounds of appeal argue:

In subsequent submissions the Appellant expanded on these points, arguing that the ICO had failed to properly consider the three step test of manifestly unreasonable cases set out in Vesco, listing 9 groups of questions in the request which he claimed were not environmental information, one which was only partly environmental and accordingly had to be disclosed and arguing that“The underlying issue here is that the ULEZ Expansion may not be an environmental policy at all, but a stealth tax providing TfL with almost 10% of its annual revenue, and its 2nd largest divisional profit, without actually benefitting the environment whatsoever” and “it cannot be the intention of Parliament that the more false statements an institution makes, the less it is open to challenge “

In resisting the Appeal the ICO relied on his decision notice, commented that his guidance was non-binding, and that while not explicitly mentioning the presumption in favour of disclosure it had been applied. He relied on Henney to submit that the issues identified by the Appellant were measures and elements affecting factors of the environment and accordingly within EIR, illustrating his arguments by an analysis of the various categories of questions identified by the Appellant (Annex 2). The correct approach was to consider issues broadly and with a request on this scale it was entirely appropriate to deal with it entirely under EIR. With respect to the public interest arguments the Commissioner maintained his position that the balance lay in favour of TfL relying on the manifestly unreasonable exemption.

In the hearing the Appellant reaffirmed his position and explained that the solicitors acting for White were the moderators of the website from which he had gathered the information requests. He thought it would be reasonable and more efficient if he gathered all the requests in one document and TfL responded to that request. He stated that there were 400,000 people on the various forums and with a neighbour he had pulled the requests together to streamline requests. He asserted that many of the Mayor’s statements undermine the basis for ULEZ expansion. He stated that “a lot of people all over social media are saying it is a con”. He claimed that a widely referred to report prepared by Imperial College “the only report supporting ULEZ, had not been [peer] reviewed.” He acknowledged that “some of the data may well be here on some of these links”. He stated that when he “put two paragraphs from TfL/ICO on the website I got 400 responses which were in the bundle.” He had then “stepped aside from the group.”

He argued that much of the information he sought was not environmental arguing the number plate recognition cameras were not “intrinsically linked to emissions” and that ULEZ “was merely a taxation policy to provide revenue under false pretences” He argued that the cost of finding the information was negligible in comparison to the revenue generated from the charging scheme.

This is an appeal to the tribunal against a decision by the Information Commissioner that Regulation 12(4)(b) of the Environmental Information Regulations 2004 “the request for information is manifestly unreasonable” applies to the request. Regulation 18(1) provides that the enforcement and appeals provisions of the Freedom of Information Act 2000 govern appeals against the determinations of the Information Commissioner under EIR. Part V of FOIA provides:

Accordingly this is a full merits appeal where the tribunal, in addition to considering the competing legal arguments, will also consider the factual circumstances in order to consider on the balance of probabilities what relevant findings of fact are appropriate.

By Regulation 2(1) of the Environmental Information Regulations 2004 “environmental information” is defined in the same words as are used in Article 2(1) of Directive 2003/4 any information in written, visual, aural, electronic or any other material form on—

Part 2 of EIR provides, by Regulation 5:

Part 3 of EIR provides for exceptions to the duty to disclose environmental information and by regulation 12:

The regulations were made as the implementation of an EU directive. In turn the directive gives effect to a treaty under the auspices of the United Nations Economic Commission for Europe, the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. In his foreword to the second edition of the Implementation Guide to the Convention the UN Secretary-General commented:

“The Aarhus Convention’s twin protections for environmental and human rights; and its focus on involving the public, provide a mechanism for holding governments to account in their efforts to address the multi-dimensional challenges facing our world today, including climate change, biodiversity loss, poverty reduction, increasing energy demands, rapid urbanisation, and air and water pollution.”

The three pillars of the Convention, access to information, public participation and access to justice are integral to the policy behind the Convention; and one account of the logic of the Convention is that information enables participation which gives standing to seek a judicial remedy in the event that participation did not produce a satisfactory outcome.

In this request about information regarding ULEZ the order is somewhat reversed from that envisaged by Aarhus. ULEZ starts as a policy response to litigation and referral to the ECJ because of poor air quality in London. The latest expansion of the zone was signalled by the publication of a large amount of data by the Mayor/Greater London Assembly/Transport for London (small samples of which are included in paragraphs 9 and 10 above) in discharge of their duties – including under regulation 4 (above). There was then an extensive public consultation and considerable public debate. The results of that exercise in public participation were considered and published as the Mayor announced that the extension would proceed. The ULEZ process then moved on to the third leg of the Aarhus Convention with applications to the Administrative Court in early 2022. The lead case (Hillingdon) was brought by local authorities for areas affected by the expansion, clearly reflecting the concerns of some of their residents. The other case White was significantly cut down in scale and stayed pending the outcome of Hillingdon. After the arguments in Hillingdon had been heard the Appellant submitted his exceptionally long list of information requests. The comment by the Commissioner in paragraph 28 of the decision note (paragraph 21 above) is entirely appropriate.

The grounds of appeal are misguided or tendentious.

There are in addition issues around the methodology he adopted in compiling his request. While he must have been aware of much of the material published by the public authority since it had been drawn to his attention in connection with a previous request and subsequently; he showed some reluctance to look for himself. He told the tribunal “I could spend days and days looking for it myself but I have FOIA”.

Given the range and scope of information in the public domain published by TfL in connection with ULEZ expansion, by London local authorities and health authorities, by government departments or available in the clinical and scientific literature it is appropriate to consider the extent to which this information has already been published or directly signposted by TfL.

On his account he complied the request by looking at questions posted by people on a website of a campaigning group opposed to ULEZ expansion. An examination of the list of questions indicates some difficulties for any person seeking to answer them. Certain questions refer to attached documents (not attached), others rhetorically seek advice, some appear more motivated by annoyance than a search for information. However, the Appellant appears to have treated them all as equally valid and shows no sign of reviewing these questions critically. While on his account he omitted many other questions the ones he did include have some significant weaknesses.

A difficulty with this approach is that if a public authority is attempting to provide information to the public in accordance with EIR regulation 4 (electronic publication) and providing guidance and assistance (EIR regulation 9) and in accordance with the statutes directly related to the government of Greater London’s exercise of its functions relating to transport; there is clearly a concomitant obligation on the Appellant to use those sources.

While the Appellant argued that by answering all these queries in one place a useful resource would be created which would efficiently resolve many requests for information, the likelihood that it would be widely consulted and the specific focus on one part of the new area subject to ULEZ expansion indicates that it would be unlikely to significantly add to public understanding. The methodology behind compiling this list points to a desire to build and support a community of opposition to the expansion of ULEZ rather than a desire to increase public understanding, giving individuals the perception that their voice of opposition to the expansion is widely shared - some at least of the questions are concerned with expressing annoyance. In his appeal he quoted from the ICO guidance on the public interest in disclosure of environmental information:

While the issue is important and has a significant public profile the value of the disclosure of the information to the Appellant (when so much is already in the public domain due to publication by TfL, government departments, London boroughs, the clinical journals covering public health and elsewhere) would be very slight.

In considering the presumption of disclosure; it is clear that this comes into its own when there is a near balance between the two arguments, in this case, the lack of critical analysis of the questions before submitting them, the failure to seriously address material already released, the failure to distinguish between requests for information, rhetorical requests for advice clearly intended to be points of argument rather than requests seeking information, the underlying methodology for its compilation, the unclear relationship with the almost concluded judicial review mean that it does not shift the balance which was correctly identified by TfL and the Commissioner and which falls decisively in upholding reliance on the exemption.