Home Office v Information Commissioner; DEFRA v Information Commissioner and Simon Birkett
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Lloyd,Lord Justice Carnwath |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1606 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2011 |
| Docket Number | Case No: C3/2011/1094 |
[2011] EWCA Civ 1606
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
JUDGE EDWARD JACOBS
GIA/2098/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Lloyd
and
Lord Justice Sullivan
Case No: C3/2011/1094
Mr Gerry Facenna and Ms Laura Elizabeth John (instructed by Friends of the Earth Rights and Justice Centre) for the Appellant
Mr. Jonathan Swift QC and Mr Alexander Ruck Keene (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 28 & 29 November 2011
Introduction
When a public authority has initially relied upon a particular exception when refusing to release environmental information under the Environmental Information Regulations 2004 ("the Regulations") may it rely upon a different exception or exceptions in proceedings before the Information Commissioner ("the Commissioner") and/or the First-Tier Tribunal (General Regulatory Chamber) (Information Rights) ("the Tribunal")?
In this case the Tribunal decided that the Respondent could not rely on two new exceptions without the permission of the Tribunal, which it withheld. On appeal, the 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 proceedings before the Commissioner and the Tribunal; it may rely only upon the exception or exceptions which were specified in its reasons for refusing the request.
The Regulations implement Council Directive 2003/4/EC on public access to environmental information ("the Directive"). The Appellant does not contend that, read purely as domestic statues, there is any provision in either the Regulations, or the enforcement and appeals provisions in the Freedom of Information Act 2000 ("the Act") which are applied by the Regulations, which prohibits reliance upon a new exception. Mr. Facenna submits on behalf of the Appellant that the Regulations must be interpreted in a purposive manner, and 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 the Directive. He relied on two judgments of the Court of Justice of the European Union ("CJEU"): Case C-233/00 Commission v France [2003] ECR 1–6625, and Case C-186/04 Housieaux v Délégués du conseil de la Région de Bruxelles – Capitale [2005] ECR 1–3299. The focus is therefore upon the Directive, and an outline of the Regulations will suffice for present purposes.
The Regulations impose a duty upon a public authority that holds environmental information to make it available on request (reg. 5). That duty is subject to a number of exceptions (reg. 12). A refusal of a request for environmental information must be made in writing as soon as possible and no later than 20 days (or 40 days in a complex case) after the date of receipt of the request (reg. 14). The refusal must specify the authority's reasons for not disclosing the information required including any exception relied on (reg. 14(3)). A person whose request has been refused may ask the authority to review its decision (reg. 11). The review decision must be notified as soon as possible, and not later than 40 days after receipt of the request for a review (reg. 11). If the refusal to disclose is maintained the person whose request has been refused ("the complainant") may apply for a decision from the Commissioner (section 50 of the Act as applied by reg. 18). The complainant or the public authority may appeal to the Tribunal against the Commissioner's decision notice (section 54 of the Act as applied by reg. 18). There is a further appeal on a point of law from the Tribunal to the Upper Tribunal.
The Facts
The Appellant is the founder of the cross-party Campaign for Clean Air in London. On the 22 nd January 2009 he made a request for information from the Respondent. The request related to discussions between the previous Government and the Mayor of London on matters of air pollution and the UK's compliance with EU air quality laws. It is common ground that the information requested is environmental information as defined in the Regulations and the Directive.
On 1 st April 2009 the Respondent refused the request relying on the exception contained in regulation 12(4)(e):
" ….a public authority may refuse to disclose information to the extent that —…(e) the request involves the disclosure of internal communications."
On 1 st May 2009 the Appellant requested an internal review. On 15 th September 2009 the Respondent maintained its decision, relying on the exception in regulation 12(4)(e).
On 3 rd October 2009 the Appellant asked the Commissioner for a decision under section 50 of the Act. In a decision notice dated 2 nd November 2009 the Commissioner, without having invited any representations from the Respondent, ordered the Respondent to disclose the information. The Respondent appealed to the Tribunal. In its Notice of Appeal dated 1 st December 2009 the Respondent continued to rely on the exception in regulation 12(4)(e), but to the extent that the disputed information comprised information in respect of which legal advice privilege could be maintained, it also relied upon the exceptions in regulation 12(5)(b) and (d):
"…a public authority may refuse to disclose information to the extent that its disclosure would adversely affect —… (b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal nature"…. (d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law".
Much of the disputed information had been released in three tranches, in December 2009, March 2010 and April 2010, prior to the hearing before the Tribunal on 11 th May 2010. The Tribunal concluded that:
"There is no obligation on the Tribunal to consider any exception relied upon by a public authority that had not previously been relied upon; exceptions or exemptions raised for the first time before the Tribunal should only be considered if there is a reasonable justification" (para. 27).
The Tribunal found that there was no reasonable justification for the Respondent "overlooking" the two new exceptions in regulation 12(5) (b) and (d), and therefore declined to consider whether the remaining disputed information fell within those exceptions (paras. 33 and 34).
The Respondent appealed to the Upper Tribunal. Its appeal was heard together with an appeal by the Commissioner against a decision by a differently constituted Tribunal that the Home Office was entitled to rely as of right on new exemptions in respect of non-environmental information falling within the Act. At the hearing of the appeals before the Upper Tribunal the Respondent contended that it was entitled as of right to rely on the new exceptions/exemptions; the Appellant contended that a public authority could not lawfully rely on new exceptions/exemptions before the Commissioner and the Tribunal; and the Commissioner adopted a middle course: 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 accepted the Respondent's submissions and rejected both the Appellant's and the Commissioner's submissions. The Upper Tribunal first considered the position under the Act in the context of the Home Office appeal. Having concluded that the Home Office was entitled to rely as of right on new exemptions, the Upper Tribunal considered whether the position was different under the Regulations. 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"), the Upper Tribunal considered the relevant provisions of the Directive and the Regulations and the two decisions of the CJEU referred to above, and concluded that they did not justify, still less require, a conclusion that was different from that which resulted from an analysis of the Act.
The Commissioner did not appeal against the Upper Tribunal's decision in the Home Office case, and he has not participated in the Appellant's appeal. The course taken by the Commissioner is perfectly understandable, but it has two consequences which are relevant for the present appeal:-
(a) There is no challenge to the Upper Tribunal's decision that in respect of information which is not environmental information a public body is entitled as of right under the Act to rely on new exemptions. While Mr. Facenna did not accept the correctness of this decision, he made no attempt to demonstrate that it was wrong as a matter of domestic law.
(b) The appeal has been presented upon the basis that there is no "middle way", as advocated by the Commissioner before the Upper Tribunal. Mr. Swift QC submitted on behalf of the Respondent that, upon a proper interpretation of the Directive and the Regulations, there was no statutory justification for a "middle way". While Mr. Facenna was reluctantly prepared to accept the Tribunal's approach in the present case as a second-best option if his primary submission – that there was no power to rely on new exceptions...
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