Readers will recall that the Upper Tribunal decided in early 2011 that public authorities are entitled as of right to rely on any exception / exemption under either the Freedom of Information Act 2000 or the Environmental Information Regulations 2004 at any stage of the proceedings.

In that case, the Upper Tribunal considered two appeals together. The first was an appeal brought by DEFRA, challenging the Tribunal’s decision that it could not now seek to rely on additional exemptions under the EIRs and that it was limited to the exemption that it had relied on at the time of its refusal to disclose environmental information to Mr Birkett (the founder of the cross-party Campaign for Clean Air in London). The second was an appeal brought by the Information Commissioner, challenging the Tribunal’s decision that the Home Office was entitled as of right to rely on new exemptions under FOIA.  At the hearing of the appeals before the Upper Tribunal, DEFRA submitted that it was entitled as of right to rely on the new exceptions/exemptions, Mr Birkett said 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 (namely that 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 agreed with the public authorities that they could rely on a new exception/exemption at any time under either FOIA or the EIRs.

Mr Birkett appealed against this decision about the EIRs to the Court of Appeal: Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606.

Lord Justice Sullivan (with whose judgment Lord Justices Lloyd and Carnworth agreed) started by considering the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters. The Council Directive 2003/4/EC on public access to environmental information implements the Aarhus Convention and is itself implemented in domestic law by the EIRs. Mr Birkett argued that it was necessary to interpret the Directive (and in turn the EIRs) as preventing a public authority from relying on a new or different exemption after the internal review stage; otherwise the complainant would not have an effective remedy because they would not know the reasons for the public authority’s refusal of their request for information.

Lord Justice Sullivan rejected Mr Birkett’s argument. He took into account that the Directive does not proceed upon “the unlikely premise” that within the prescribed “tight timescale the public authority will always “get it right the first time”, hence the review process provided for by Article 6. While some decisions may be relatively straightforward, the question whether some information, and if so how much of that information, falls within one or more of the exceptions may well be a question of some complexity. Are documents protected by legal advice or litigation privilege, are there intellectual property rights in certain information, etc.? The exceptions are concerned with important public interests.” (paragraph 21). He held that “The Court or other legal body conducting the review under Article 6(2) is not reviewing the decision made by the administrative reviewer under Article 6(1), it is reviewing “the acts or omissions of the public body concerned.” Thus, the court must consider de novo the propriety of releasing the information. Such a process is bound to discover errors and omissions in the exceptions relied upon in initial decisions, and it would be surprising, given the balancing exercise required by the Directive, if those errors were incapable of subsequent correction.” (paragraph 23).

Lord Justice Sullivan went on to give a hypothetical example of a public authority which mistakenly fails to rely in its refusal notification upon an adverse effect upon public security or national defence. Mr Birkett considered that this would happen rarely and that the solution was for the Commissioner / Tribunal to refuse to allow the public authority to rely on that exception / exemption late but to exercise its discretion to refuse to order disclosure of the information where that was necessary to avoid a breach of human rights (paragraphs 24 and 25).

Lord Justice Sullivan rejected Mr Birkett’s proposed solution. The public interests protected by the exemptions in the EIRs were not just human rights. Further, the Commissioner and the Tribunal were able to exercise effective judicial control, for example by requiring an appellant to set out his grounds at an early stage in the grounds of appeal. “Any application by the public authority to rely upon a new exception made after the time limit for its grounds of appeal/response would be subject to the Tribunal’s case management powers under rule 5; see also rules 22(4) and 23(5) which deal with the submission of notices of appeal and responses out of time.” (paragraph 28). He concluded that the public authority was entitled to rely as of right on new EIR exemptions in the notice of appeal to the Tribunal.

Note that there was no appeal from the Upper Tribunal’s decision in the Home Office case about FOIA, which remains good law. It is also noteworthy that the Commissioner chose not to participate in the appeal, which meant that the Court of Appeal did not hear submissions on the middle course which it had proposed to the Upper Tribunal in the Home Office case. Lord Justice Carnworth commented that “There would have been attractions in an alternative approach, which could have reconciled the need for urgency, implicit in the CJEU case-law, with the need for flexibility in the operation of the scheme” (paragraph 31).

As a result of this decision, the general rule is that public authorities can rely on any exception / exemption at any time under the EIRs or FOIA. However, note that there is still a different approach where the public authority seeks to rely on the cost exception in FOIA after its initial decision; see our post on this topic here.

Rachel Kamm