Member States of the EU are subject to an obligation to report to the European Commission on the application of European Directive 2003/4/EC on public access to environmental information. Last week, the UK Government submitted its report to the Commission. The report highlights the Government’s experience of the application of the Environmental Information Regulations 2004 since they came into force in the UK on 1 January 2005. It is worth noting in particular Annex 1 to the report which contains a summary of tribunal decisions on the definition of ‘environmental information’ for the purposes of the Regulations. The Government is inviting comments on the report from members of the public.
The recent judgment in HM Treasury v Information Commissioner and Evan Owen  EWHC 1811 (Admin) saw the High Court quash a decision by the Information Tribunal requiring HM Treasury to disclose whether or not it held advice from the Law Officers on the compatibility of the Financial Services and Markets Bill with the Human Rights Act.
By a long-standing constitutional Convention – recognised in the Ministerial Code – the fact that the Law Officers have been consulted is not disclosed outside government without the consent of the Attorney General. This is specifically accommodated in the qualified exemption under section 35(1)(c) FOIA. The Tribunal, however, had upheld the Commissioner’s decision that the public interest favoured disclosure in this case.
Blake J held that, in so doing, the Tribunal failed to afford due weight to three factors. First, the fact that section 35(1)(c) aimed not to supplant the Convention, but to preserve it subject to a public interest test. Secondly, the views of experienced civil servants on the consequences of departing from the Convention. Thirdly, those factors counting against disclosure that were based on generalised rather than specific harm. The Tribunal had also failed to evaluate for itself the strength of the public interest in disclosure in light of the extensive legal advice that had already been publicised on this issue.
Given that similar factors have been discussed in a number of other High Court judgments referred to by Blake J, this judgment makes a notable contribution to the jurisprudence on the public interest balancing test.
A letter was circulated yesterday (4th August) to “stakeholders” of the Information Tribunal, giving information about the implications for the Information Tribunal of the new unified tribunal structure.
The new structure involves a system of First Tier tribunals and Upper Tribunals. The Information Tribunal will be one of a number of tribunals that transfer into the General Regulatory Chamber (GRC), one of the First Tier tribunals.
According to the letter, from January 2010 information rights cases will generally be heard in the GRC, with an appeal to the Administrative Appeals Chambers of the Upper Tribunal on a point of law. However, in some circumstances cases will be heard in the first instance in the Upper Tribunal. This will be where the appeal is complex, unusual, or particularly important. In additional national security appeals (under section 28 of the Data Protection Act 1998 or section 60 of the Freedom of Information Act 2000) will go straight to the Upper Tribunal.
The procedural rules for those tribunals moving into the GRC in September 2009 have now been finalised and laid before Parliament. This includes the Charity Tribunal, the Estate Agents Appeals Panel and the Consumer Credit Appeals Tribunal. For those jurisdictions moving to the GRC in January 2010 – including the Information Tribunal – any further specific procedural rules will be added by amendment once Parliament has approved the transfer. Approval is expected later this year.
Last month the House of Lords granted the Information Commissioner permission to appeal the Court of Appeal’s judgment in Office of Communications v IC  EWCA Civ 90 (‘Ofcom’). In Ofcom, the Court of Appeal considered the question of how the public interest test under regulation 12(5)(b) of the Environmental Information Regulations 2004 (‘EIR’) applied where a number of different exceptions were engaged in respect of particular requested information. It held that, rather than conducting discrete public interest balancing exercises under each individual exception, the public authority could effectively bundle all the public interest considerations relevant to the applicable exceptions into a single compendious public interest balancing exercise. The Commissioner has now been granted permission to appeal the judgment to the newly constituted Supreme Court. 11KBW’s Ahlaq Choudury is acting on behalf of the Commissioner.
In Home Office & Ministry of Justice v IC (EA/2008/062), the Information Tribunal held that the Home Office had erred in refusing to disclose information which revealed how internally it had dealt with some 48 FOIA requests which had previously been made by a particular media organisation. In particular, it held that the Home Office had not been entitled to treat that information as exempt under section 36 FOIA (prejudice to public affairs). The High Court has now upheld the Tribunal’s decision on appeal by the Home Office – see Home Office & Ministry of Justice v IC  EWHC 1611 (Admin). Notably, the High Court declined to decide the question of how the Tribunal should respond to a public authority which sought to invoke exemptions for the first time before the Tribunal. The Home Office had sought to argue, contrary to existing Tribunal orthodoxy (see particularly Department for Business and Regulatory Reform v IC & Friends of the Earth (EA/2007/0072)), that the Tribunal had no discretion to refuse late reliance on exemptions and that a public authority was, in effect, automatically entitled to invoke new exemptions at any stage in the process. The Commissioner invited the Court to approve the orthodox position. Keith J held that he ought not to decide this particular issue given that it had effectively become academic on the facts of the appeal.