ECJ opinion of Advocate General in OFCOM v Information Commissioner

On 10 March 2011, an opinion was delivered by Advocate General Kokott in OFCOM v Information Commissioner, which the Supreme Court referred to the Court of Justice for a preliminary ruling on the issue of how the public interest balancing test in the Environmental Information Regulations should be approached when two or more exceptions to disclosure are engaged:

The courts of the United Kingdom disagree as to how this balancing exercise is to be undertaken where several interests deserving of protection are simultaneously undermined. Is each exception to be addressed separately, by considering whether the interest served by it or the public interest served by disclosure prevails (the view taken by the courts at the first two instances and by a minority of the judges of the Supreme Court submitting the reference for a preliminary ruling)? Or can the interests served by different exceptions be combined and then together weighed against the public interest served by disclosure (view taken at third instance and by the majority of the Supreme Court)?

The Advocate General backed cumulation and the view of the majority of the Supreme Court:

Contrary to the view expressed by Sweden and the Information Commissioner, the use of the term ‘interest’ in the singular does not preclude a cumulation of several interests...

Nor does emphasis on the particular case in which the balancing exercise is to be carried out proscribe cumulation. As argued by the United Kingdom, the more obvious interpretation is that the term ‘in the particular case’ means that it relates to the specific decision that is pending on the disclosure of information. 

Furthermore, the breakdown of interests meriting protection into different exceptions does not preclude their cumulation. As convincingly argued by the United Kingdom, these exceptions are not always clearly distinguishable from each other. Indeed, the interests meriting protection sometimes clearly overlap.
...
Consequently, the answer to the reference for a preliminary ruling should be that where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2) of the Environmental Information Directive, but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.

The Court will now deliberate and its judgment will be pronounced shortly. Advocates generals opinions are not binding on the Court but are followed in the majority of cases.

Updated EIR guidance from DEFRA

DEFRA has issued the following updated guidance on the Environmental Information Regulations:

28 July 2010 – Updated guidance on Charging for environmental information under the EIRs (PDF 100 KB)

6 July 2010 – Updated guidance on Handling requests for environmental information and Records management and offences. See our Detailed guidance page below for all the detailed guidance.

PhonepayPlus subject to Environmental Information Regulations

The Information Commissioner has ruled that PhonepayPlus, the body which regulates premium rate phone-paid services in the UK on behalf of OFCOM, is a public authority for the purposes of the Environmental Information Regulations because it carries out functions of public administration (regulation 2(2)(c)).

he [the Commissioner] believes that the decisive factors in this case are that it has Regulatory powers..., carries out its statutory duties and if it was not there then the government would be highly likely to task another organisation with the same powers...In addition the government provides considerable oversight and control to enable PhonepayPlus to perform regulatory functions on behalf of the government department.

Decision Notice FER0265609 is here.

New European register gives public access to information on emissions from industrial facilities

European Environment Agency
Press release 9 Nov 2009

The European Commission and the European Environment Agency today launched a comprehensive new European pollutant release and transfer register – E-PRTR. The register contains information about the quantity and location of pollutants released to air, water and land by industrial facilities throughout Europe. It includes annual data for 91 substances and covers more than 24 000 facilities in 65 economic activities. It also provides additional information, such as the amount and types of waste transferred from facilities to waste handlers both inside and outside each country.

Full press release here.
Access the E-PRTR register here.

DEFRA must disclose information relating to Lord Hunt and Mayor of London meeting

The Information Commissioner has ordered DEFRA to disclose information relating to a meeting between the former DEFRA minister Lord Hunt and Mayor of London Boris Johnson. The actual request was for “any minutes, papers, correspondence or other material" relating to the meeting, at which the requester believed the air quality of London and extension of the congestion charging zone were discussed.

DEFRA refused to disclose the information citing the exception for internal communications in regulation 12(4)(e) of the Environmental Information Regulations.

The IC's decision notice states:

Defra’s guidance at paragraph 7.4.5.5 states that the exception applies to “government administration in the broad sense” and that “the proper scope of the exception for ‘internal communications’ is communications internal to the whole area of the state covered by the definition of ‘public authority’ in Article 2(2)”.

22. The ICO disagrees with this approach, for the following reasons:

• regulation 12(8) makes specific mention of communications between government departments being covered by this exception. This regulation would serve no purpose if any statecommunication was to be deemed internal for the purposes of regulation 12(4)(e); and

• it would extend the scope of regulation 12(4)(e) to cover any communication sent between public authorities and therefore potentially reduce the availability of information to the public.

23. Communications between two separate public authorities, for example between a central government department and a local authority, or between two local authorities, will not constitute internal communications for the purpose of regulation 12(4)(e).

24. A similar approach was taken by the Scottish Information Commissioner in his Decision 052/2008 under the Environmental Information (Scotland) Regulations 2004 (paras 57 to 63).

25. The above explanations and examples provide insight into the reasoning behind the Commissioner’s decision in this case and arguments that the Mayor of London’s office is not considered to be a government department. It is within this context that communications between Defra and the Mayor of London cannot be defined as being internal.

Read the full decision FER0272686 here.

DEFRA EIR slides published

The slides from DEFRA's recent EIR seminars for Whitehall departments are now available to download from the DEFRA website:

Seminar slides (2009) (690 KB): the differences between the EIRs and FOIA, including background and purpose, the definition of environmental information, using the ICO model publication scheme for proactive publication, and developing case law.

DEFRA reports on access to environmental information

DEFRA have published the following two reports on the operation of the Environmental Information Regulations, which implement a EU directive on public access to environmental information, and provide a parallel right of access to the Freedom of Information Act:

Report to the European Commission

Member States are under an obligation to report by 14 August 2009 to the European Commission on the experience gained in the application of the European Directive 2003/4/EC on public access to environmental information. This Directive was transposed into UK law as the Environmental Information Regulations 2004.

Public access to environmental information – Experience gained in the application of Directive 2003/4/EC

Members of the public are welcome to submit their views. If you let us have your comments by mid-October we will arrange to forward them to the European Commission.

Our contact details are:

Environmental Information Unit
Department for Environment, Food and Rural Affairs
Area 1B, Ergon House,
Horseferry Road,
London SW1P 2AL
Email: environmentalinformationunit@defra.gsi.gov.uk

The Local Authority Survey 2008

In late 2008 Defra carried out a questionnaire-based survey of local authorities in England, Wales and Northern Ireland to gather views on their experience of applying the Environmental Information Regulations 2004 (the EIRs). The survey was aimed at finding out

• whether local authorities found Defra’s EIR guidance useful
• how the website could be improved, and
• how local authorities were dealing with the disclosure of environmental information in general.
  

Read the report on the survey (PDF 275 KB)

Waste companies must open files to public

Friends of the Earth
Press release 31 March 08

An important decision under freedom of information laws will now allow members of the public to directly request environmental information from waste companies.

Following a formal complaint by Friends of the Earth, the Information Commissioner has ruled that a private waste management company is required to make environmental information public because it is classed the same as a public authority under the Environmental Information Regulations 2004.

Phil Michaels, Head of Legal at Friends of the Earth's Rights & Justice Centre said:

"The Information Commissioner has made a very important decision that private waste companies can be subject to environmental information legislation. In the past, waste companies have tried to wriggle out of releasing information to the public. Now it is clear that the public is legally entitled to know how their waste is treated by these companies. People all over the country can now get hold of information they may need to challenge controversial proposals, like plans to build new incinerators."

In March 2006, Lewes District Friends of the Earth wrote to South Downs Waste Services Ltd requesting information about the environmental assessments of its proposal for an incinerator in Newhaven. South Downs Waste Services Ltd is part of the Veolia family of companies, one of the largest waste management companies in the UK. The company replied stating that the Environmental Information Regulations 2004 did not apply to it as it was not a public authority and that it was not required to release the information.

Lawyers in the Friends of Earth's Rights & Justice Centre wrote to the Information Commissioner on behalf of the group complaining that the company had misunderstood the legislation and that it was, in fact, a public authority for the purposes of the Regulations. In his Decision Notice the Information Commissioner found that the company was a public authority because it was under the control of East Sussex County Council and Brighton and Hove City Council as a result of its contract with those councils.

Read the decision notice (pdf)

ICO orders the release of waste management contract

Press release
28 March 08

The Information Commissioner has ordered East Riding of Yorkshire Council (East Riding) to release details of its contract with an independent waste management company, Waste Recycling Groups (WRG).

East Riding refused a request to disclose the contract with the waste management contractor. The council argued that the contract was subject to commercial confidentiality. It claimed that releasing the contract would amount to a breach of confidence which would be detrimental to the economic interests of the council and the contractor.

In his decision, the Information Commissioner highlighted the public interest in waste management and how it can affect all parts of a community to a degree. The Information Commissioner ruled that the public interest in disclosing the following information, in this particular case, overrides the public interest in maintaining the commercial confidentiality exemption:

• All information relating to pricing contained within the contract other than that highlighting specific costs or profits of the contractor
• All operational information contained within the contract other than the names of preferred subcontractors
• All information about emission levels or likely emission levels held within the contract
• All planning and development information held within the contract, other than that containing systems and technical information falling within the scope of the exception

In his decision, the Information Commissioner highlights that the decision to disclose pricing information in this situation does not equate to a decision to disclose this sort of information in all cases.

Read the decision notice (pdf)