On 14 February 2012 the European Court of Human Rights gave Judgment in the case of Hardy and Maile v United Kingdom, Application No 31965/07, in which the Applicants alleged that the UK had failed in its duties under ECHR Arts 2 and 8 regarding the regulation of hazardous activities and the dissemination of relevant information. The Application concerned the construction and operation of two Liquefied Natural Gas terminals on sites at Milford Haven Harbour. The relevant domestic provisions with respect to dissemination of information were Regulations 5 and 12 of the Environmental Information Regulations 2004 (the EIR). The complaint was about an alleged lack of information disclosed regarding the risks associated with these terminals.
The Court, at para 245, reiterated that in cases concerning hazardous activities, the importance of public access to the conclusions of studies undertaken to identify and evaluate risks and to essential information enabling members of the public to assess the danger to which they are exposed is beyond question. The Court further, at para 246, reiterated that respect, under ECHR Art 8, for private and family life, requires that where a Government engages in hazardous activities which might have hidden adverse consequences on the health of those involved in such activities, and where no considerations of national security arise, “an effective and accessible procedure must be established which enables such persons to seek all relevant and appropriate information”.
The Court, at para 248, noted that the provisions of the EIR (and of FoIA) establish an extensive regime to promote and facilitate public access to environmental information; that the definition of “environmental information” is “relatively wide” and can include information relating to public safety; that in the event that information requested is not provided by the relevant authority, a challenge to the Information Commissioner is possible, followed by an appeal to the Information Rights Tribunal, the Upper Tribunal and the Court of Appeal. Indeed the Applicants had availed themselves of the opportunities afforded by this legislation, and obtained a favourable decision from the Information Commissioner ordering the release of two reports requested by them. The complaint was that these reports were heavily redacted.
The Court concluded as follows:-
“249. The Court reiterates the importance of informing the public of the conclusions of studies undertaken and to other essential information to identify and evaluate risks. As the Information Commissioner explained in his decision notice disclosure of environmental information of the type requested by the applicants can add significantly to public knowledge of the risks posed by the development and better inform public debate. However, the Court considers that in the present case, a great deal of information was voluntarily provided to the public … The applicants have failed to demonstrate that any substantive documents were not disclosed to them. In any event, in respect of any information which they allege was not provided, they had access to a mechanism established by law to allow them specifically to seek particular information, a mechanism which they employed successfully. In the circumstances, the Court is satisfied that the authorities provided information as required by Article 8 and that there was an effective and accessible procedure by which the applicants could seek any further relevant and appropriate information should they so wish.
250. In conclusion, having regard to the information provided during the planning stage of the projects, to the provisions of the Environmental Information Regulations allowing access to environmental information and to the routes of appeal available in the FOI Act, the Court finds that the respondent State has fulfilled its positive obligation under Article 8 in relation to these applicants. There has accordingly been no violation of this provision. …”