January 28th, 2010 by Timothy Pitt-Payne
In Ofcom v Information Commissioner [2010] UKSC 3 the Supreme Court was asked to consider how public authorities should approach the exceptions to disclosure set out in the Environmental Information Regulations 2004 (EIR). Most of these exceptions are subject to a public interest test. The public interest in maintaining an exception has to be measured against the public interest in disclosure. Unless the public interest in maintaining the exception outweighs the public interest in disclosure, the information must be disclosed.
But what happens if there are a number of exceptions in play? Do you look at each exception in turn, assessing the public interest in maintaining that exception as against the public interest in disclosure? Or do you aggregate all of the exceptions, assess the combined public interest in maintaining them, and measure that combined interest against the public interest in disclosure?
In the Ofcom litigation, the Court of Appeal had decided in favour of aggregation. The Supreme Court was inclined (by a 3-2 majority) to uphold that decision. But the Supreme Court also recognised that the answer was unclear, and depended on the construction of Directive 2003/4/EC. So the Court has referred the issue to the European Court of Justice.
There is now a practical difficulty: in cases where the aggregation point might make a difference to the outcome, what should the Tribunal do? Should it follow the Court of Appeal? Should it wait for the ECJ? Or should it reach its own view on how the legislation should be interpreted? And Ofcom is an EIR case: what about aggregation under FOIA?
In practice nobody will want the outcome of their case to turn on a point that may not be resolved for some years. It will be much more attractive for parties to argue that aggregation makes no difference to the outcome of their case.
Tags: EIR, FOIA, Information Tribunal
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November 9th, 2009 by Anya Proops
On 17 November 2009, the Supreme Court will hear the Information Commissioner’s appeal against the Court of Appeal’s judgment in Office of Communications v Information Commissioner [2009] EWCA Civ 90 (Ofcom). In Ofcom, the Court of Appeal held that, when multiple exceptions were engaged in respect of particular information, the public interest test provided for under regulation 12(1)(b) of the Environmental Information Regulations 2004 would operate so as to entitle the public authority to aggregate all the different public interest factors relating to all applicable exceptions in a single, compendious public interest balancing exercise. This judgment was controversial, not least because it represented a departure from the well-established approach of tailoring public interest considerations to the individual exception in issue. Notably, in a recent Information Tribunal decision, the Tribunal highlighted some of the practical difficulties posed by the adoption of the aggregate approach to the public interest test (South Gloucestershire v Information Commissioner (EA/2009/0032), §§48-52). 11KBW’s Clive Lewis and Akhlaq Choudhury will be appearing on behalf of the Commissioner in the Supreme Court.
Tags: EIR, FOIA, public interest
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October 21st, 2009 by Anya Proops
Yesterday, the Information Tribunal promulgated an important decision on the application of certain exceptions in the Environmental Information Regulations 2004 (EIR), South Gloucestershire Council v Information Commissioner & Bovis (EA/2009/32). The case concerned an application made by a developer (Bovis) for disclosure of information contained in a number of consultants’ appraisals. The appraisals had been commissioned by the council in respect of a proposed section 106 planning agreement. The agreement in turn related to a major development which Bovis was proposing to undertake in the council’s area. The appraisals had been commissioned in essence in order to assist the council in its negotiations with Bovis in respect of the section 106 agreement. The council had refused disclosure of some of the information in the appraisals, which largely consisted of financial information, on the basis that that information fell within the exceptions provided for under r. 12(4)(e) EIR (the internal communications exception) and r. 12(5)(e) EIR (the confidential/commercial information exception). The Commissioner held that neither of these exceptions was engaged.
On appeal by the council, the Tribunal held that the circumstances of the case were such that the council had not been entitled to treat the appraisals as an ‘internal communication’ for the purposes of r. 12(4)(e) (cf. the Tribunal’s decision in Secretary of State for Transport v Information Commissioner (EA/2008/0052): draft report on transport policy prepared by independent third party was an ‘internal communication’, particularly in view of the extent to which the third party had been ‘embedded’ in the public authority). However, the Tribunal went on to allow the council’s appeal on the basis that the information in the appraisals did constitute confidential, commercial information falling within the ambit of r. 12(5)(e). The Tribunal also held that the public interest balance weighed in favour maintaining the exception and, accordingly, that the council had been lawfully entitled to withhold the requested information.
In reaching the conclusion that r. 12(5)(e) was engaged in respect of the information, the Tribunal rejected arguments advanced by the Commissioner that r. 12(5)(e) would only be engaged in respect of confidential information where the duty of confidence was owed by the public authority to a third party. It held that r. 12(5)(e) applied equally to the authority’s own confidential information. Notably, in finding that the public interest balance weighed in favour of the information being withheld, the Tribunal relied in particular on the volume of information which the council had already disclosed relating to the section 106 process and the planning process more generally.
Tags: confidentiality, EIR, exceptions
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August 14th, 2009 by Anya Proops
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.
Tags: EIR, report
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August 3rd, 2009 by Anya Proops
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 [2009] 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.
Tags: EIR, FOIA, public interest
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March 26th, 2009 by Akhlaq Choudhury
In Ofcom v Information Commissioner [2009] EWCA Civ 90, the Court of Appeal held that in applying the public interest test under the Environmental Information Regulations it is necessary to aggregate all public interest factors relating to all applicable exceptions and weigh these against the public interest in disclosure. This is a departure from the well-established approach of looking only at the public interest factors in respect of a particular exception to determine whether the public interest in maintaining that exception outweighs the public interest in disclosure. This change in approach will affect disclosure decisions under both the EIR and FOIA. The ICO has lodged a petition seeking permission to appeal to the House of Lords.
Tags: EIR, public interest
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February 26th, 2009 by Anya Proops
On 20 February 2009, judgment was handed down in the case of Office of Communications v Information Commissioner [2009] EWCA Civ 90. This is the first case under the Environmental Information Regulations 2004 (EIR) to be heard by the Court of Appeal. The Information Commissioner was represented by Akhlaq Choudhury of 11KBW. This is an important judgment affecting the general approach to the public interest test in determining whether information under the EIR should be disclosed. The judgment is also relevant to the application of the public interest test under FOIA. The case concerned a request made to Ofcom (the regulatory body for radio communications) for the disclosure of information as to the location of mobile phone masts, and in particular for that information to be disclosed in a format that would enable the requester to manipulate the underlying data using data-handling applications. Ofcom resisted disclosure on the basis that it would prejudice (a) public safety (by identifying mast locations to criminals) and (b) the intellectual property rights of the Mobile Network Operators (such rights being the database rights in the information). The Information Tribunal considered that there was a strong public interest in disclosure given, amongst other matters, the benefit to epidemiological research as to the effects of mobile phone mast radiation on the health of the public. The Tribunal considered that it was entitled to take that public interest into account notwithstanding the fact that such research would be likely to involve an infringement of database rights. In addressing the public interest balance, the Tribunal took the then well-established course of separately weighing the public interest in maintaining each of the exceptions relied upon against the public interest in disclosure. It did not aggregate all the public interest factors against disclosure. The Tribunal found that the public interest balance favoured disclosure.
On the general point of principle, namely the approach to be taken in weighing the public interest in maintaining the exemption against the public interest in disclosure, the Court of Appeal disagreed with the Tribunal’s approach. The Court held that the public interest in maintaining each exemption should be aggregated and weighed against the public interest in disclosure. An exemption-by-exemption approach was still permissible provided that the matter is also looked at in the round at the end of the process by considering whether the aggregate public interest in maintaining the applicable exemptions outweighs the public interest in disclosure. However, the Court upheld the Tribunal’s’ approach in taking into account a factor as supporting the public interest in disclosure even where that factor involves a breach of third party intellectual property rights. The Court held that the legislative scheme is such that it is permissible to take such factors into account as an aspect of the public interest in disclosure. The matter was remitted to the Tribunal to reconsider the public interest balance in accordance with the approach laid down by the Court.
Tags: EIR, environmental information, Information Tribunal, public interest
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