Export Credits Guarantee Department v Friends of the Earth
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 17 March 2008 |
| Neutral Citation | [2008] EWHC 638 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8179/2007 |
| Date | 17 March 2008 |
[2008] EWHC 638 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2
Mr Justice Mitting
CO/8179/2007
Miss G White (instructed by Treasury Solicitor) appeared on behalf of the Appellant
Miss D Rose QC and Mr B Jaffey (instructed by Friends of the Earth) appeared on behalf of the Respondent
Mr J Coppel (instructed by Treasury Solicitor) appeared on behalf of the Information Commissioner
The Export Credit Guarantee Department (“ECGD”) is a Department of State. It is currently set up under the Export and Investment Guarantees Act 1991. Its role is to facilitate the export of goods from the United Kingdom and to insure overseas investment made by United Kingdom entities. It writes a mixture of financial guarantees and export insurance policies to that end. In carrying out its functions it takes into account other government policies relating to the activities in which it is interested.
In particularly complex or sensitive cases, and to that end, it invites comment from other government departments on projects which it has been invited to support. One such project was a scheme to develop offshore oil and gas fields off the north- east coast of Sakhalin Island. The scheme in 2003 was to be undertaken by a consortium in which Shell had a majority stake. Changes have occurred since to the consortium arrangements, so that as from early 2007 the Russian entity Gazprom has assumed a 50 per cent interest in the project.
Support for approximately US$650 million-worth of project finance was sought. The scheme will have, if implemented, an impact, potentially great, on the habitat and feeding grounds of the Western Grey whale and other environmental impacts. The survival of that species is endangered. The side effects of the scheme may prove terminal to it. The scheme has accordingly attracted the adverse interest of environmental groups, including Friends of the Earth, the first respondent to this appeal.
On 28th February 2003 ECGD notified DEFRA, DFID, DTI, FCO, MOD and TPI (now known as UKTI) and invited responses by 14th March 2003. Three were forthcoming: from the FCO, DEFRA and the DTI. No decision on the application has been made and, I am told, on 29th February 2008 the application was withdrawn, so that no decision upon it will ever be made.
On 11th March 2005 Friends of the Earth requested that ECGD make available to it the following information:
“The correspondence or notification from ECGD to the Relevant Government Departments notifying them that an application (or prospective application) was being treated as 'potentially sensitive' and requesting comments; and
Any and all information received from the relevant government departments in response to that notification/request in relation to the Sakhalin LNG project.”
The request was made under regulation 5(1) of the Environmental Information Regulations 2004, SI 2004/3391.
On 4th July 2005 ECGD informed Friends of the Earth than in its view the request involved the disclosure of internal government communications, which were exempt from disclosure under regulation 12(4)(e). It nevertheless disclosed its request for information, but refused to make available the three responses.
Friends of the Earth requested a review. ECGD maintained its refusal. During the course of that process it became apparent that a response had been received from DEFRA, which was not a department identified by Friends of the Earth in its original request.
On 24th November 2005 Friends of the Earth applied to the Information Commissioner for a decision under Part VI of the Freedom of Information Act 2000 and regulation 18 of the 2004 regulations. By a decision notice of 6th September 2006 the Information Commissioner upheld ECGD's refusal. Friends of the Earth appealed to the Information Tribunal. By a decision promulgated on 20th August 2007 the Information Tribunal allowed the appeal and ordered disclosure of all the information requested by Friends of the Earth.
After a thorough and careful review of the evidence given and arguments advanced to it, the Information Tribunal concluded that, on balance of probabilities, ECGD:
“… has failed to demonstrate that there is a sufficiently demonstrable public interest in withholding the interdepartmental responses to the case notification in March 2003 as to outweigh the public interest in disclosure.” (see paragraph 52 of its decision)
Before I turn to the grounds upon which its decision is challenged, it is necessary to set out the statutory background.
The origin of the regulations is to be found in a Directive of the European Parliament and of the Council of 28th January 2003. The origin of that Directive was a proposal by the Council and a Draft Directive dated 29th June 2000. In its explanatory memorandum the Council observed in relation to the key operational article, Article 4:
“Directive 90/313/EEC lays down a general principle of public access to environmental information. However, in order to protect certain legitimate interests, there have to be provisions for exempting information from disclosure. These exceptions must be very tightly drawn in order not to weaken the general principle of access and to enable the Directive to actually meet its objective in practice. …
It should also be acknowledged that public authorities should have the necessary space to think in private. To this end, public authorities will be entitled to refuse access if the request concerns material in the course of completion or internal communications. In each such case, the public interest served by the disclosure of such information should be taken into account.”
In the Draft Directive, the relevant operative parts of Article 4 stated:
“1. Member States may provide for a request for environmental information to be refused if:
…
(c) the request concerns material in the course of completion or internal communications;
In each case the public interest served by the disclosure shall be taken into account.”
In the words which conclude subparagraph (2):
“In each case, the public interest served by the disclosure shall be weighed against the interest served by the refusal. Access to the requested information shall be granted if the public interest outweighs the latter interest. …”
As passed into Community law, Article 4 was altered so as to produce a stronger emphasis upon the public interest in disclosure. The recitals to the Directive set its context, in particular recitals 1 and 16:
“(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment. …
(16) The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. …”
Article 1 set out the objective of the Directive:
“(a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; …”
Article 2 defined various terms, including “environmental information”. Article 3 provided a basic structure for access to environmental information on request and Article 4 set out the sections.
For present purposes only Article 4(1)(e) and the words which follow Article 4(2) need be quoted:
“1. Member States may provide for a request for environmental information to be refused if:
…
(e) the request concerns internal communications, taking into account the public interest served by disclosure. …
2. The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal.”
As will be apparent by comparison of the Directive as passed into law and as originally proposed, the words “taking into account the public interest served by disclosure” have been inserted into Article 4(1)(e) and “the grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure” have been added to the concluding words of paragraph 2. Those added words clearly lay greater emphasis on the public interest in disclosure and upon the need to confine exceptions to particular cases than did the original draft.
The Directive has direct effect as regards its object in domestic law, but it is otherwise not of direct effect. It is, however, a powerful aid to the interpretation of domestic legislation passed into law to give effect to it.
The 2004 regulations were the product. Regulation 2 defined, amongst other terms, “environmental information”. Regulation 5 provides for a duty to make environmental information held by a public authority available upon request, subject to the exceptions which follow. Regulation 12 contains the...
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