The Court of Appeal has recently held that information about the communications and data component of the government's Smart Meter Programme (SMP) constitutes "environmental information" for the purposes of regulation 2(1) of the Environmental Regulations 2004 (EIR).

The judgment provides a useful clarification of the definition of "environmental information" and the scope of the EIR. It also serves as a reminder that the EIR may also be applicable to information which has little apparent connection to measures (such as policies, programmes, plans and legislation) affecting or likely to affect the environment.

Background

The Court of Appeal case concerned an appeal against the Upper Tribunal's decision that information included in a Project Assessment Review (PAR) about the communications and data component of the government's SMP was "environmental information" and should be determined in accordance with the EIR.

The government's SMP provides real-time information to consumers, suppliers and network operators about their energy usage, while the communications and data component enables the transfer of information from smart meters to suppliers and network operators.

Alex Henney, an expert in energy usage, requested this information from the relevant government department, which refused the request in accordance with the Freedom of Information Act (FOIA). Following a number of appeals to the Information Commissioner’s Office, the First-tier Tribunal (Information Rights) and the Upper Tribunal (UT), the case was brought before the Court of Appeal.

The Court of Appeal was asked to decide whether the communications and data component was an environmental measure, which would mean that it was covered by the EIR (which require public authorities to adopt a presumption in favour of public access to environmental information) instead of the FOIA.

Decision of the Court of Appeal

The issue before the Court of Appeal was whether the communications and data component was sufficiently connected to the SMP in order to constitute "environmental information" within the context of the EIR. The Court of Appeal held that this information was "on" the SMP as a whole because it was integral to the success of the SMP and should therefore be considered under the EIR. Key takeaways from the Court of Appeal's decision include the following:

  • The Court of Appeal considered regulation 2(1) of the EIR and found that it was permissible to take account of the wider context in which the information appeared and not solely the specific issue that it primarily covered.
  • According to the Court of Appeal, the context may include: the purpose for which the information was produced; the importance of that information in connection to the purpose; and how that information will be used.
  • The issue of determining the scope of the information concerned can be drawn by reference to the Environmental Information Directive (to which the EIR give effect) and the Aarhus Convention (to which the UK is a signatory). These provide that citizens should have access to all the information they need to be able to have an awareness of environmental matters and to effectively participate in environmental decision-making. It was clear to the Court of Appeal that providing the public with the communications and data component included in the PAR would contribute to its effective engagement in environmental matters.

Comments

The case provides clarity on what information constitutes "environmental information" for the purposes of the EIR and highlights the broad application of the EIR. Information which does not appear to be relevant to environmental issues may still be considered to be "environmental" on the basis of the wider context to which it can apply and its significance to environmental matters.

The decision also drew a distinction between the concept of information as defined in the FOIA and the definition of "environmental information" as stated in the EIR. The FOIA places its focus on the information itself. In addition, some of the exceptions which apply to it are absolute and will apply regardless of whether the public interest necessitates disclosure or not. In contrast, the EIR may concentrate on the information's wider context and the relevant measure as well. Organisations should therefore be wary of that distinction and exercise caution when considering certain information and applying it to either regime.