The Department for Business, Energy and Industrial Strategy v The Information Commissioner & Alex Henney
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice David Richards,Lord Justice Irwin |
| Judgment Date | 29 June 2017 |
| Neutral Citation | [2017] EWCA Civ 844 |
| Docket Number | Case No: C3/2016/0880 |
| Court | Court of Appeal (Civil Division) |
[2017] EWCA Civ 844
Lord Justice Beatson
Lord Justice David Richards
and
Lord Justice Irwin
Case No: C3/2016/0880
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) UPPER TRIBUNAL JUDGE WIKELEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Akhlaq Choudhury QC, Tom Cross (instructed by Government Legal Department) for the Appellant
Robin Hopkins (instructed by Information Commissioners Office) for the 1 st Respondent
Gerry Facenna QC, Julianne Morrison (instructed by Harrison Grant Solicitors) for the 2nd Respondent
Hearing dates: 17 & 18 May 2017
Approved Judgment
I Overview:
This is an appeal against the decision promulgated on 7 December 2015 by Upper Tribunal Judge Wikeley sitting in the Administrative Appeals Chamber of the Upper Tribunal. Judge Wikeley held that information requested by Mr Alex Henney on 9 November 2012 from the Department for Energy and Climate Change ("the Department") in a Project Assessment Review about the communications and data component of the United Kingdom government's Smart Meter Programme is "environmental information" under regulation 2(1)(c) of the Environmental Information Regulations 2004 SI 2004 No.3391 ("the EIR"). The Department, now called the Department for Business, Energy and Industrial Strategy, is the appellant. The first respondent is the Information Commissioner and the second respondent is Mr Henney, who has a longstanding professional interest and expertise in energy usage and policy.
The Smart Meter Programme was introduced pursuant to Directive 2009/72/EC ("the Electricity Directive") concerning common rules for the internal market in electricity. The programme seeks to provide sophisticated information about energy usage to consumers, suppliers, and network operators in near real time. Its benefits are said to include enabling consumers to make more accurate price comparisons between suppliers and to enhance their ability to control their energy usage, and enabling suppliers and the national grid better to match supply with demand and thus improve grid efficiency. The communications and data component provides the method of communicating information from smart meters to suppliers and network operators.
The Electricity Directive requires EU Member States to undertake a cost benefit assessment of large scale distribution of smart meters and, where that assessment is positive, to provide at least 80% of consumers with smart meters by 2020. The UK Government has made a positive assessment of the benefits of these meters and has pledged to take reasonable steps to equip domestic and smaller non-domestic premises with smart metering by the end of 2020.
The EIR gave effect in domestic United Kingdom law to Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information. 1 That Directive in turn gave effect to international obligations under the 1998 UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, the "Aarhus Convention". The obligations of public authorities to disclose environmental information under the EIR, the Directive and the Aarhus Convention are different and generally broader than the obligations under the Freedom of Information Act 2000 (" FOIA") to disclose information that does not qualify as "environmental information". For example, apart from an exception concerning personal data, all of the exceptions under the EIR are subject to a public interest balancing test whereas a number of the exemptions under the FOIA
are absolute. Moreover, the EIR contains a presumption in favour of disclosure but the FOIA does notI set out the definition of "environmental information" in regulation 2(1) of the EIR at [11] below. At this stage it suffices to state (emphasis added) that regulation 2(1)(c) provides that "environmental information" means any information "on" " measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements and activities affecting or likely to affect …" the state of the elements of the environment referred to in regulation 2(1)(a) 2 and factors, such as energy, emissions, discharges and other releases into the environment affecting or likely to affect the elements of the environment referred to in (a).
In very general terms, the issue between the parties is when and whether information on a measure which does not in itself affect the state of the elements of the environment or the factors referred to in regulation 2(1)(a) and (b) of the EIR, can be information "on" another measure which does. In this case, the measures are respectively the document containing the information, the Project Assessment Review about the communications and data component, and the Smart Meter Programme as a whole. It is common ground that the programme as a whole was likely to affect the relevant elements and factors. In the Upper Tribunal, the Judge (at [93]) identified the Smart Meter Programme as the relevant measure, without considering whether the communications and data component itself was a measure, and so did not express a view as to whether the communications and data component was itself likely to affect the relevant elements and factors.
The question before us concerns the extent to which it is permissible to look beyond the document containing the information and to have regard to what the Upper Tribunal described as the "bigger picture" to identify the "measure" that the information in it is "on". The Department's grounds of appeal are summarised at [34] below. In a nutshell, its case is that the Upper Tribunal erred because it reached the conclusion that the information in the Project Assessment Review is "on" the Smart Meter Programme by improperly using the "bigger picture" approach. On its behalf, Mr Choudhury QC submitted that the Tribunal impermissibly allowed the context of the information to become its subject. There is, he maintained, nothing in the Project Assessment Review to suggest that it is a review of anything more than the communications and data network which was its focus. That network does not and is not likely to have any effect on the state of the elements of the environment or the factors referred to in regulation 2(1)(a) and (b). He submitted that the consequence was that the Upper Tribunal erred in concluding that the regime under the EIR applied rather than that under the FOIA.
Mr Hopkins, on behalf of the Information Commissioner, and Mr Facenna QC, on behalf of Mr Henney, seek to uphold the decision of the Upper Tribunal. They submitted that a Project Assessment Review whose immediate focus is the communications and data component of the project can also contain information
"on" or "about" the Smart Meter Programme as a whole. They argued that whether it does so is a question of fact for the fact-finding body, here the Upper Tribunal. In this case, the tribunal's finding that the communications and data component was "on" the programme as a whole, because it is integral to the success of the programme as a whole, is a finding of fact, which, absent perversity, the Upper Tribunal was entitled to makeIn section II of this judgment, after setting out the definition of "environmental information" in the EIR, I summarise the guidance in the jurisprudence as to the approach to be used. Section III contains a summary of the factual and procedural background. Section IV summarises the decision of the Upper Tribunal, and section V analyses the submissions of the parties. It also gives the reasons for my overall conclusion that, although I consider that the use of the phrase the "bigger picture" is not helpful because it can deflect attention away from the definition in regulation 2(1) of the EIR, in this case the tribunal did not fall into legal error, despite using the phrase. Accordingly, its finding that the communications and data component was "on" the Smart Meter Programme as a whole because it is integral to the success of the programme as a whole was one that it was entitled to make. If my Lords agree, I would therefore dismiss the appeal.
The General Regulatory Chamber of the First-tier Tribunal ("the FtT") dealt with the question of the applicable regime as a preliminary issue rather than deciding what the outcome would have been under both regimes (see [21] below). The matter will therefore have to be remitted to the FtT for it to consider the substantive issues that arise under the EIR regime which applies to Mr Henney's request. Mr Henney's request for information was made four and a half years ago. I am aware of the pressures on the General Regulatory Chamber, and know that it is not for this court to interfere in its management of its heavy caseload. But, given when Mr Henney's request was made, the timetable for the introduction of the Smart Meter Programme, and the purpose of the EIR to facilitate more effective participation by the public in environmental decision-making, there may be a case for this matter to be given some expedition.
II. Legislative framework:
Regulation 2(1) of the EIR defines "environmental" information as follows:
'"environmental information" has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on —
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically...
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