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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Department for Business, Energy And Industrial Strategy v The Information Commissioner & Anor [2017] EWCA Civ 844 (29 June 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/844.html Cite as: [2017] PTSR 1644, [2017] WLR(D) 439, [2017] EWCA Civ 844 |
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ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) UPPER TRIBUNAL JUDGE WIKELEY
[2015] UKUT 671 (AAC)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DAVID RICHARDS
and
LORD JUSTICE IRWIN
____________________
The Department for Business, Energy and Industrial Strategy |
Appellant |
|
- and - |
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The Information Commissioner & Alex ![]() | Respondents |
____________________
Robin Hopkins (instructed by Information Commissioners Office) for the 1st Respondent
Gerry Facenna QC, Julianne Morrison (instructed by Harrison Grant Solicitors) for the 2nd Respondent
Hearing dates: 17 & 18 May 2017
____________________
Crown Copyright ©
Lord Justice Beatson :
I Overview:
II. Legislative framework:
'"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 modified organisms, and the interaction among these elements;
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;
(d) reports on the implementation of environmental legislation;
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c) …."
I have underlined the parts of the definition that are particularly in issue in the present appeal.
"35 First of all, it should be recalled that, by becoming a party to the Aarhus Convention , the European Union undertook to ensure, within the scope of EU law, a general principle of access to environmental information held by or for public authorities: see Ville de Lyon v Caisse des dépôts et consignations (Case C-524/09) [2010] ECR I-14115 , para 36 and Flachglas Torgau GmbH v Federal Republic of Germany (Case C-204/09) [2013] QB 212, para 30.
36 As recital (5) in the Preamble to Directive 2003/4 confirms, in adopting that Directive the EU legislature intended to ensure the consistency of EU law with the Aarhus Convention with a view to its conclusion by the Community, by providing for a general scheme to ensure that any natural or legal person in a member state has a right of access to environmental information held by or on behalf of public authorities, without that person having to state an interest: see the Flachglas Torgau case, para 31.
37 It follows that, for the purposes of interpreting Directive 2003/4, account is to be taken of the wording and aim of the Aarhus Convention, which that Directive is designed to implement in EU law: see the Flachglas Torgau case, para 40."
"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."
The recitals to the Aarhus Convention include:
"citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters";
and,
"improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns".
"to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned … . To be covered by the right of access it establishes, such information must fall within one or more of the … categories set out in that provision".
In Fish Legal it was stated (at [39]):
"… [It] should also be noted that the right of access guaranteed by Directive 2003/4 applies only to the extent that the information requested satisfies the requirements for public access laid down by that directive, which means inter alia that the information must be 'environmental information' within the meaning of Article 2(1) of the directive, a matter which is for the referring tribunal to determine in the main proceedings (Flachglas Torgau, paragraph 32)."
III. Factual and procedural background:
IV The decision of the Upper Tribunal:
"As a matter of law, when identifying the relevant "measure" for the purposes of regulation 2(1)(c), I also find it is permissible to look beyond the precise issue with which the disputed information is concerned and to have regard to the "bigger picture". This approach is consistent with a broad interpretation of the EIR as mandated by the Aarhus Convention and the Directive. In this context I also bear in mind that on a proper reading only the Mersey Tunnel Users Association case is a worked example of the pure "bigger picture" approach in the context of regulation 2(1)(c), given that Lend Lease was actually a regulation 2(1)(e) case."[7]
The phrase the "bigger picture" appears to have been derived from the submissions of Mr Hopkins, who appeared on behalf of the Information Commissioner before the Upper Tribunal and before us. His skeleton argument for the Upper Tribunal stated:
"When identifying the relevant "measure" for the purposes of regulation 2(1)(c) EIR, it is permissible to look beyond the precise issue with which the disputed information is concerned and to take account of the 'bigger picture'. He accepts, however, that there must be a sufficient connection between the 'big picture' and the particular information in dispute, such that the latter satisfies the definition under regulation 2(1) EIR." [skeleton, §19, quoted UT §39]
and:
"There must be a sufficient connection between the 'big picture' and the particular information in dispute, such that the latter satisfies the definition under regulation 2(1) EIR. The component to which the disputed information relates must play a sufficiently important role in the large project and in the environmental aspects of that project." [skeleton, §20, quoted UT §84]
"… regulation 2(1)(c) must be liberally construed whilst not losing sight of the statutory language. The SMP itself is on any reckoning a "measure", in that it is plainly a policy, plan or programme in the ordinary meaning of those terms."
"… I acknowledge that the argument so far has been focussed on the SMP, and not the PAR. The primary focus of the PAR is the communications and data components of the SMP. I shall assume for the present – although I recognise too that MrHenney
disputes this – that the PAR itself is not a measure "affecting or likely to affect the elements and factors referred to in (a) and (b) above". However, the definition of "environmental information" in regulation 2(1) must be read in its entirety. It includes "any information … on" any of the matters enumerated in sub-paragraphs (a) to (e) inclusive. Taking a broad view of the regulation, and bearing in mind the "bigger picture", it is accurate to say that the PAR is information on the SMP as a whole, which (as noted above), is plainly a relevant measure for the purpose of regulation 2(1)(c). In reaching this conclusion I find that the PAR does not contain information on some incidental aspect of the SMP that could be easily hived off. The communications and data system underpinning the SMP is integral to its success. As Mr Hopkins pointed out, the official consultation paper described the DCC, the government's chosen vehicle for delivery of the data and communications component, as a "key element" in the rollout of the SMP. The establishment of the DCC's services were likewise said to be "critical to the success" of the programme as a whole (DECC, Smart Metering Implementation Programme: A consultation on the detailed policy design of the regulatory and commercial framework for DCC (2011), FTT open bundle, p.232). As Mr Frankel put it rather more bluntly, but equally accurately, without the communications and data system there is no SMP."
"…the contents of this PAR, with its focus on the communications and data component, is sufficiently closely connected to the success of the SMP overall. Furthermore, the SMP's objectives include relevant environmental impacts. The disputed information accordingly falls within regulation 2(1)(c)."
VI Analysis:
(1) The Tribunal misapplied regulation 2(1)(c) in failing to identify the correct "measure". It erred in treating the Smart Meter Programme as the relevant measure and overstated the significance of the communications and data component to the continuation of the Smart Meter Programme.
(2) The Tribunal erred in finding that the "bigger picture" approach was permissible and/or appropriate in identifying the relevant "measure. The approach taken by the Tribunal went beyond the broad approach to construction that is required of the EIR and the Directive. It was not entitled effectively to disregard the actual document and measure which is the subject matter of the disputed information.
(3) The Tribunal erred in its treatment of the Mersey Tunnel case which it should have distinguished on the ground that, unlike the disputed information on the communications and data component in the Project Assessment Review, the disputed information on "tolling" of the Mersey Gateway Project was a measure which it was conceded would be likely to have an impact on the environment, or alternatively because the measure in the Mersey Tunnel case may have had an effect on the environment regardless of the "bigger picture". Mr Choudhury did not develop this ground in his oral submissions, but he did not abandon it.
(4) The Tribunal erred in failing to consider whether the information in the Project Assessment Review was "on" the Smart Meter Programme. "On" a measure means "about" that measure and requires a direct connection between the information and the measure. The Tribunal erred in concluding that the Project Assessment Review was "on" the Smart Meter Programme when it was in fact about the communications and data component. It erred in regarding the fact that the communications and data component was "integral to [the Smart Meter Programme's] success" as a sufficient basis on which so to regard the Project Assessment Review. The Smart Meter Programme was not contingent upon the information considered in the Project Assessment Review or any particular communications and data component system.
VII Conclusion and disposition:
Lord Justice David Richards
Lord Justice Irwin
Note 1 It replaced Directive 90/313/EEC of 30 June 1990. [Back] Note 2 The list of elements includes air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, and the interaction among these elements. [Back] Note 3 The principles which were not in dispute were summarised by the Upper Tribunal at §§32-37 of its decision. [Back] Note 4 An unredacted copy of the Project Assessment Review was provided to this court with the appeal bundles, but before the hearing the parties informed the court that it should not have been and the court did not read or consider it. [Back] Note 5 FOIA section 35(1)(a). [Back] Note 6 FOIA section 36(2)(b) and (c). [Back] Note 7 The references are to Mersey Tunnel Users Association v Information Commission and Holton BC FLT(General Regulatory Chamber) 24 June 2009 and R(Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin) [Back]