Birkett GIA 1694 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 21 December 2011 |
| Neutral Citation | 2011 UKUT 39 AAC |
| Subject Matter | Information rights |
| Respondent | Information Commissioner and SB |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 1694 2010 |
| Appellant | Birkett |
[2012] AACR 32
(Birkett v Department for the Environment, Food and Rural Affairs
Judge Jacobs GIA/1694/2010
26 January 2011 GIA/2098/2010
CA (Carnwath, Lloyd and Sullivan LJJ)
21 December 2011
Information rights – whether a public authority may later rely on additional or different exemptions/exclusions from those originally stated
The complainant made a request to the Department for the Environment, Food and Rural Affairs (DEFRA) for information in relation to discussions between the previous Government and the Mayor of London about air quality. Initially the Department relied for its refusal on regulation 12(4)(e) of the Environmental Information Regulations 2004, and, having been ordered by the Information Commissioner to disclose all the information held, appealed to the First-tier Tribunal relying additionally on regulation 12(5)(b) and (d) and regulation 13. The tribunal refused to allow the Department to rely on these new exceptions as of right and declined to exercise its discretion to allow it to do so. DEFRA appealed, the complainant contending that a public authority may only rely in proceedings before the Information Commissioner and the tribunal upon the exception or exceptions specified in its reasons for refusing the request, and the Information Commissioner adopting a middle course, that while there was no right to rely on new exceptions/exemptions, a public authority could be permitted to do so at the discretion of either the Commissioner or the tribunal. The Upper Tribunal heard the case together with an appeal from the Information Commissioner where the First-tier Tribunal had decided, on the appeal of the Home Office, that the Home Office was entitled as of right to rely on new exemptions under the Freedom of Information Act 2000 and that, if it had been a matter of discretion, the tribunal would have allowed it to do so. The Upper Tribunal judge upheld the decision of the First-tier Tribunal in the Home Office case, agreeing that a public authority had the right under the Freedom of Information Act to rely on new exemptions, subject only to the case management powers of the First-tier Tribunal. In the second case, he agreed with DEFRA. Having noted that the Directive gives effect to the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (the Convention), he considered the relevant provisions of the Directive and the Regulations and two decisions of the CJEU, Case C-233/00 Commission v France [2003] ECR I-6625, and Case C-186/04 Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale [2005] ECR I-3299, and concluded that they did not justify, still less require, a conclusion that was different from that which resulted from an analysis of the Freedom of Information Act. The complainant appealed, not contending that there is any provision in either the Regulations, or the enforcement and appeals provisions in the Act which are applied by the Regulations, read purely as domestic statutes, which prohibits reliance upon a new exception, but contending that permitting a public authority to rely upon a new exception before the Commissioner or the tribunal would be contrary to the underlying purpose of Council Directive 2003/4/EC which is implemented by the Regulations.
Held, dismissing the appeal and declining to refer the issue to the Court of Justice of the European Union, that:
- the time limits for notifying a refusal and for stating the reasons for refusal (including the exception(s) relied on) are mandatory (Commission v France and Housieaux). However, considering the Directive as a whole, there are three features of the environmental information regime which are interrelated: (1) the relatively short time within which the initial decision to release, or to refuse to release (with reasons) must be made, (2) the broad scope of the review process under Article 6 of Council Directive 2003/4/EC and (3) the balance that has to be struck between the public interest in the prompt release of environmental information and the need to avoid harm to the other important public interests listed in Article 12(2) (paragraphs18 to 21)
2. the court or other legal body conducting the review under Article 6(2) is not reviewing the decision made by the administrative reviewer under Article 6(1), but reviewing “the acts or omissions of the public body concerned”. Thus, the court must consider de novo the propriety of releasing the information. Such a process is bound to discover errors and omissions in the exceptions relied upon in initial decisions, and it would be surprising, given the balancing exercise required by the Directive, if those errors were incapable of subsequent correction (paragraph 23);
3. permitting a public authority to rely on a new exception in the administrative and legal review processes under Article 6 does not deprive the person seeking the information of any effective judicial control and does not thereby destroy the effectiveness of the process. At the administrative review stage the Information Commissioner has ample power to regulate the proceedings before him, and at the legal review stage the Tribunal Procedure Rules ensure that any new exception, if it is to be relied upon, is identified at the outset of the appeal, and within a relatively short time. Any application by the public authority to rely upon a new exception made after the time limit for its grounds of appeal/response would be subject to the tribunal’s case management powers (paragraphs 26 to 28).
____________________________________________________________________________________________
DECISIONS OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
[2011] UKUT 39 (AAC)
DEFRA v Information Commissioner and Simon Birkett: GIA/1694/2010
As the decision of the First-tier Tribunal (made on 11 May 2010 under reference EA/2009/0106) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.
DIRECTIONS:
- The tribunal must undertake a fresh consideration of the issues raised by the appeal against the Information Commissioner’s decision notice
- DEFRA is entitled as of right to rely on exceptions in addition to or substitution for those identified in its regulation 14 notice. This is subject to any case management direction or decision under the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976)
Home Office v Information Commissioner: GIA/2098/2010
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference EA/2010/0011, made on 24 May 2010, did not involve the making of an error on a point of law.
Application for permission to appeal to the Court of Appeal
The time limit for applying for permission to appeal to the Court of Appeal is one month: rule 44(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
REASONS FOR DECISIONS
- GIA/1694/2010 There are three parties to this appeal. The appellant is the Department for Environment, Food and Rural Affairs, which is the relevant public authority. The respondents are the Information Commissioner and Mr Simon Birkett, who is the person who requested the information. Just a small point on procedure and nomenclature. Mr Birkett was described as an additional party. Under the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), all parties to an appeal are...
To continue reading
Request your trial
-
Home Office v Information Commissioner; DEFRA v Information Commissioner and Simon Birkett
...Upper Tribunal (Administrative Appeals Chamber) decided that the Respondent was entitled as of right to rely on the two new exceptions [2011] UKUT 39 (AAC). The Appellant appeals against that decision. He submits that a public authority may not rely on a new exception or exceptions in proce......
-
Governor v Information Commissioner
...[2012] P.T.S.R. 1299; [2012] 2 C.M.L.R. 5; [2012] Env. L.R. 24; [2011] EWCA Civ 1606, referred to. (5) DEFRA v. Information Commr., [2011] UKUT 39 (AAC), referred to. (6) Evans v. Information Commr., [2012] UKUT 313 (AAC), referred to. (7) Goodridge v. Chief Const. (Hants.), [1999] 1 W.L.R.......