The European Court of Justice (ECJ) is to be faced with the task of interpreting the Environmental Information Regulations 2004 (EIR) to determine the correct approach to the application of the public interest test where a public authority seeks to rely on more than one exception under the EIR to withhold information.

Broadly speaking, the EIR give rights of public access to environmental information held by public authorities. The Regulations provide specifically that a public authority that holds environmental information shall make it available on request. There are however numerous exceptions to this general principle, including: where the information requested includes third party personal data, where the information request is manifestly unreasonable or where the request is too general, where the material requested is in the course of completion or contains unfinished documents or incomplete data, where the information discloses internal communications and where the disclosure would adversely effect international relations, defence, national security or public safety.

In applying the exceptions, public authorities are obliged to apply a presumption in favour of disclosure. A public authority can rely on more than one exception in response to a particular request, however it should be noted that the exceptions are still subject to a public interest test. This means that a public authority, in deciding whether to disclose the requested information, must assess whether in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

The issue now for consideration before the ECJ is whether, in cases where a public authority seeks to rely on more than one exception to refuse the request for information, each exception should be individually assessed in light of the relevant public interest concerns, or alternatively whether the public interest concerns in respect of all of the exceptions relied upon for justification of non-disclosure should be considered cumulatively to determine whether or not disclosure would, on the whole, be in the public interest.

The approach to be adopted has the potential to seriously impact upon the extent of the environmental information which public authorities are required to disclose. If the public interest concerns are to be assessed in light of each exception individually, they may be considered insufficient to justify disclosure in the public interest. Alternatively, if the public 17 March 2010

The European Court of Justice (ECJ) is to be faced with the task of interpreting the Environmental Information Regulations 2004 (EIR) to determine the correct approach to the application of the public interest test where a public authority seeks to rely on more than one exception under the EIR to withhold information.

Broadly speaking, the EIR give rights of public access to environmental information held by public authorities. The Regulations provide specifically that a public authority that holds environmental information shall make it available on request. There are however numerous exceptions to this general principle, including: where the information requested includes third party personal data, where the information request is manifestly unreasonable or where the request is too general, where the material requested is in the course of completion or contains unfinished documents or incomplete data, where the information discloses internal communications and where the disclosure would adversely effect international relations, defence, national security or public safety.

In applying the exceptions, public authorities are obliged to apply a presumption in favour of disclosure. A public authority can rely on more than one exception in response to a particular request, however it should be noted that the exceptions are still subject to a public interest test. This means that a public authority, in deciding whether to disclose the requested information, must assess whether in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

The issue now for consideration before the ECJ is whether, in cases where a public authority seeks to rely on more than one exception to refuse the request for information, each exception should be individually assessed in light of the relevant public interest concerns, or alternatively whether the public interest concerns in respect of all of the exceptions relied upon for justification of non-disclosure should be considered cumulatively to determine whether or not disclosure would, on the whole, be in the public interest.

The approach to be adopted has the potential to seriously impact upon the extent of the environmental information which public authorities are required to disclose. If the public interest concerns are to be assessed in light of each exception individually, they may be considered insufficient to justify disclosure in the public interest. Alternatively, if the public interest concerns are considered cumulatively, there is more likelihood of a claim for disclosure in the public interest being substantiated.

The current approach to be adopted is unclear. In Office of Communications v Information Commissioner [2010] UKSC 3, the Tribunal weighted each exception separately in terms of assessing the public interest concerns. Following an appeal, the Court of Appeal aggregated the public interest concerns to determine whether the overall public interest favoured non-disclosure. The approach of the Court of Appeal was affirmed by the majority following further appeal to the Supreme Court, however it was agreed at this stage that the matter was not clear cut and so should be referred to the European Court to determine the correct approach under the Directive.

The approach to be taken by the ECJ remains to be seen, however in the meantime, pending a determination, it is thought that the aggregate approach should be applied.