The Court of Appeal in Department for Business, Energy and Industrial Strategy v The Information Commissioner and Alex Henney [2017] EWCA Civ 844 has upheld an Upper Tribunal ("UT") decision that information about the communications and data component of a Smart Meter Programme (the "Programme") constitutes "environmental information" for the purposes of regulation 2(1) of the Environmental Information Regulations 2004 (the "EIR").

Key Points

  • The Court of Appeal decided it was permissible to look beyond the document containing the information which was the subject of the request and have regard to the "bigger picture" to identify the measure that the information in it was "on" for the purposes of the EIR.
  • The EIR does not require an artificially restrictive approach to be taken to regulation 2(1). Information can be characterised as being about: a specific measure; more than one measure; or a measure which is a sub-component of a broader measure as well as the broader measure as a whole.
  • When identifying the measure, the definition in the EIR should be applied purposively and the information should be considered in its context.

Background

The case concerned an appeal against the UT's decision that information requested by Mr Henney in a Project Assessment Review about the communications and data component of the Programme (the "Review") was "environmental information" for the purposes of regulation 2(1) of the EIR which defines the term.

Mr Henney requested the information from the appellant government department under the Freedom of Information Act 2000 ("FOIA") and received a heavily redacted copy of the Review. Mr Henney complained to the Information Commissioner's Office (the "ICO"). The ICO accepted the department's submissions that FOIA applied but argued that the public interest favoured disclosure. The department appealed the ICO's decision and Mr Henney cross-appealed the point on the application of FOIA. The First-tier Tribunal (the "FtT") addressed this preliminary issue and held that the information was environmental and that the EIR therefore applied rather than FOIA. When the matter reached the UT, the ICO agreed that the information was covered under the EIR. The UT, by taking account of the "bigger picture", concluded that the information requested was "on" the Programme and therefore amounted to "environmental information".

The appellant was granted permission to appeal the UT's decision to the Court of Appeal arguing that the UT had erred in its approach by: (a) failing to identify the correct measure; (b) adopting a "bigger picture" approach in establishing the relevant measure; and (c) concluding that the Review was "on" the Programme when in its view, it was about the communications and data component.

The issue between the parties was whether information on a measure (ie the Review) which did not in itself affect the state of the elements of the environment or the factors referred to in regulation 2(1) EIR could be information "on" another measure (ie the Programme) which did.

Decision

Beatson LJ (with whom Richards LJ and Irwin LJ agreed) dismissed the appeal and upheld the UT's decision that the communications and data component was "on" the Programme as a whole because it was integral to the success of the Programme as a whole. The Court held that:

  1. Nothing in regulation 2(1)(c) requires the relevant measure to be that which the information is primarily on. Identifying the measure may require consideration of the wider context, including the purpose for which the information was produced, how important the information is to that purpose, how it is to be used and whether access to it would enable the public to be informed about, or to participate in, decision-making in a better way.
  2. The line between information that qualifies as "environmental information" and information that does not can be drawn by reference to the general principle that the EIR, Directive 2003/4/EC (to which the EIR gives effect) and the Aarhus Convention must be construed purposively. Determining on which side the information will fall is fact and context specific.
  3. The recitals of both the Directive and Aarhus Convention referred to the requirement that citizens had access to information to enable them to participate in environmental decisions more effectively. Since the objectives of the Review included assessing the progress of the communications and data component, it was clear the public may be better informed and better able to contribute to environmental decision making if they were able to have access to the Review.

The matter was remitted to the FtT to consider the substantive issues under the EIR which applied to Mr Henney's request.

Comment

This case is important for a number of reasons:

  1. It highlights the wide application of the EIR on information that is not directly connected to or immediately concerned with a measure which is likely to affect the environment. Information which at first glance does not appear to be "environmental information" may in fact be disclosable to a member of the public under the EIR if the context so dictates.
  2. Beatson LJ drew a distinction between the definition of "information" in section 1(1) FOIA and "environmental information" under regulation 2(1)(c) EIR. The former focused on the information itself and the latter focused on the relevant measure as well. Clients should therefore exercise caution when applying either regime to the information concerned.
  3. Beatson LJ also made clear that nothing in the EIR suggested that an artificially restrictive approach should be taken to regulation 2(1)(c). Identifying the measure the disputed information was "on" might require consideration of the wider context including taking a purposive approach to the EIR, the Directive and the Aarhus Convention.

These points are relevant to private organisations who satisfy the "public authority" test for the purposes of the EIR; hold environmental information on behalf of a public authority; or otherwise provide environmental information to a public authority.