It is a clear feature of access regime embodied in the EIR that the right of public access to environmental information does not apply to bodies to the extent that they are ‘acting in a … legislative capacity’ (r. 3(3)). This exclusion is permissible under both Article 2(2) of the Directive 2003/4/EC on Public Access to Environmental Information and Article 2(2) of the Aarhus Convention. The exclusion is no doubt derived from the constitutional principle that legislators are democratically elected and are directly accountable to the public (see further the Implementation Guide to the Aarhus Convention, p. 34). But what is the position if a legislative act does not in practice involve any kind of democratically driven legislative process? What if the legislation in question amounts to the mere rubber stamping of a decision by administrators? Will that act still fall within the scope of the exclusion, despite lacking any meaningful democratic credentials? Following a recent judgment of the CJEU, it would seem that the latter question must be answered in the negative. In Solvay & Ors v Région Wallone Case C-182/10 (judgment delivered on 16 February 2012), the Walloon Parliament had legislated to ratify the granting of certain planning consents in respect of a number of major developments. A question arose as to whether the Aarhus Convention applied to the ratifications. The CJEU were in no doubt that the legislation in question could not fall within the ambit of the exclusion provided for in Article 2(2) of the Convention. This was because that legislation ‘simply ratified’ a pre-existing administrative act. It was not derived from a substantive legislative process of the kind required by the Aarhus Convention (see paras. 29-43 of the judgment and note in particular in those paras. the consideration of Article 1(5) of Directive on the assessment of the effects of certain public and private projects on the environment, which provides for a specific right of access to information relevant to environmentally significant developments). It follows that administrative acts cannot be rendered immune from the full force of the environmental information access regime merely by being covered in a thin legislative veneer (see also the judgment in Boxus & Ors [2011] ECR 1-0000 where the Court reached a similar conclusion).

The judgment in Solvay is also interesting for what it says on the question of the effect of the Implementation Guide to the Aarhus Convention. In response to the question whether the Convention must be interpreted in accordance with the Guide, the Court concluded that the Guide, which was drawn up by international experts, was designed to be an ‘explanatory document’ which contained observations which were ‘capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Convention’ but which had ‘no binding force and do not have the normative effect of the provisions of the Aarhus Convention’ (para. 27).

Dalley v Information Commissioner, EA/2011/0180, FTT Decision on 15 February 2012, concerns EIR Regulation 12(5)(d), on breach of confidence, and a refusal by the Ombudsman of an information request.  The confidentiality was provided by Section 32(2) of the Local Government Act 1974 in relation to Ombudsman investigations and conducting them efficiently.  The question was whether the public interest in maintaining that confidentiality outweighed the public interest in awareness of investigations on environmental issues conducted by the Ombudsman.  The subject matter was drainage issues and the alleged failure of the Local Planning Authority to address them in a satisfactory manner.  The FTT concluded that the balance of public interest was against disclosure.  The FTT emphasized (para 11) that there is a public interest in enabling the Ombudsman to receive information in confidence, so as not to affect adversely his ability to investigate complaints and thus to maintain the accountability and transparency of local government.

Yesterday the High Court handed down a judgment which highlights the potentially nuanced approach which the courts will take when considering the privacy rights of minors. In Spelman v Express Newspapers [2012] EWHC 239, the Court was asked to consider the question whether an interim injunction should be granted to the seventeen year old son of Caroline Spelman, Secretary of State for DEFRA. The injunction was designed to restrain the publication of private and indeed sensitive information relating to the Spelmans’ son by Express Newspapers (“EN”). Having found that the son would have a reasonable expectation of privacy in respect of the information in question, Lindblom J went on to consider how the son’s privacy rights under Article 8 should be balanced against EN’s right to freedom of expression under Article 10. He concluded that the balance tipped in favour of protecting the son’s right to privacy. In reaching this conclusion Lindblom J took into account in particular: that the claimant was a minor who ‘faced considerable press scrutiny in a tabloid newspaper’ [para. 17]; that publication of the story by EN would ‘not of itself advance the public interest claimed for it to a material degree’, as that public interest would ‘be protected and advanced in any event’ [para. 24] and, further, that publication of this story was ‘likely to have a very significant harmful effect on the claimant’ [para. 25].

However, notably the claimant’s status as a minor was not sufficient to incline Lindblom J to allow his application for anonymity in respect of the order itself. He held that the fact that subject matter of the application and the precise nature of the relief granted would not enter the public domain was sufficient to protect the claimant’s interests and that the fundamental importance of the principle of open justice meant that the claimant should be identified as the person who sought injunctive relief against EN. Lindblom J went on to comment that this seemed ‘properly to reflect the course which the court ought now normally to take in situations such as these’ [para. 35]. See further the relevant jurisprudence referred to in the judgment including: Cream Holdings Ltd v Banerjee [2005] 1 AC 253 (Supreme Court judgment on the test to be applied under the Human Rights Act when seeking injunctive relief restraining freedom of expression), Murray v Express Newspapers plc [2009] Ch 481, (Court of Appeal judgment on the privacy rights of JK Rowling’s son) and DFT v TFD [2010] EWHC 2335 (hearings in private to prevent unlawful publication of private information).

16 February 2012 by Julian Milford

The Supreme Court has given judgment yesterday (15 February 2012) in Sugar v BBC [2012] UKSC4. The Supreme Court’s judgment in Sugar represents the last stage in a 7-year battle waged by Mr Sugar (and, following his death, the representative of his estate) to compel the BBC to disclose the “Balen report” under FOIA. This was an internal report from 2004 about the quality and impartiality of the BBC’s coverage of Middle Eastern affairs, which dealt among other matters with complaints that the BBC was biased against Israel. Mr Sugar was a well-known solicitor and supporter of the State of Israel, who considered that the BBC’s coverage of the conflict between Israel and Palestine was seriously biased.

FOIA applies to the BBC only in respect of information “held for purposes other than those of journalism, art or literature”: see Part VI of Schedule 1 FOIA. On the assumed premise that the Balen report was held by the BBC partly for the purposes of journalism, and partly for purposes other than those of journalism, the question for the Supreme Court was whether information held by the BBC with a dual purpose was within the scope of the Act.

Answering that question required the Court not only to analyse the wording and purpose of the Act, but also to reason whether Mr Sugar’s rights under Article 10 ECHR required any different outcome. Lord Brown’s reasoning in particular is of general importance as regards the right of access to information under Article 10, and not relevant simply to the narrow question of statutory interpretation in Sugar.

The statutory interpretation point: information held for dual purposes

Parsing the phrase “information held for purposes other than those of journalism” allowed for a number of possible approaches. Approach (1) would be that only information held exclusively for journalistic purposes would be outside FOIA. Approach (2) would be that information held predominantly, but not exclusively, for journalistic purposes would also be outside FOIA (i.e. a “dominant purpose” test). Approach (3) would be that only information held exclusively for non-journalistic purposes would be within FOIA. So if information was held for purposes that included journalism (even as a subsidiary purpose), this would bring the BBC outside FOIA. Mr Sugar argued for approach (1). The BBC argued for approach (3), with approach (2) as a fall-back.

The SCJs held (Lord Wilson dissenting) that approach (3) was correct. That was above all because the intention behind the exclusion was to protect the freedom of public service broadcasters to gather, edit and publish news without the inhibition of disclosure obligations. Per Lord Walker (representing the views of the majority), Parliament decided that the BBC’s right to freedom of expression warranted a more general and unqualified protection for information held for journalistic purposes, than was available under the exemptions in Part II of FOIA. That purpose would be frustrated if the coexistence of non-journalistic purposes resulted in the loss of immunity. So if any part of the BBC’s purpose in holding material was its broadcasting output, it would not be disclosable.

Article 10 ECHR

The SCJs all broadly agreed that an analysis of Mr Sugar’s possible rights under Article 10 ECHR did not carry his case any further. Of particular interest, however, are the conclusions of Lord Brown (giving the only detailed reasoning on the point) on why that was so.

Mr Sugar asserted that the ECtHR had moved towards a general recognition of a right of access to information under Article 10 in three recent cases (Matky v Czech Republic, Tarsasag v Hungary, Kenedi v Hungary). Failing to disclose the report to him interfered with that right: and such interference was not necessary or proportionate.

Lord Brown did not attempt to define exactly what right of access Matky, Tarsasag and Kenedi laid down. However, his starting point was to note the well-established line of Strasbourg jurisprudence, encapsulated in the unanimous Grand Chamber decision in  Roche v UK (2005) 42 EHRR 599, in which the ECtHR has found that Article 10 does not impose on States any positive obligations to disseminate information of their own motion. Lord Brown pointed out that Tarsasag was a decision of the Second Section of the ECtHR; that it relied for its assertion that the ECtHR had moved towards a broader interpretation of the notion of freedom to receive information on Matky alone; and that Matky was a case in which the complainant sought information under a general right to information under the Czech legal system, and in which the ECtHR held that any interference with his rights flowing from the refusal to disclose information was justified. Matky, said Lord Brown, was an “unpromising foundation on which to build any significant departure from what may be called the Roche approach…”

Whatever the significance of the Tarsasag line of authority, Lord Brown was certain that it did not establish any interference with the freedom to receive information under Article 10(1), where a public authority, acting consistently with domestic legislation governing the nature and extent of obligations to disclose information, refused access to documents. In any event, said Lord Brown, it was open to a State to legislate a blanket exclusion for disclosure of information held for the purposes of journalism. Such an exclusion would be proportionate; so that even if there were any interference with Article 10(1), it was justified under Article 10(2).

Plainly, Lord Brown’s reasoning on the scope of Article 10(1) is highly significant for the relevance of Article 10 to disclosure of information covered by FOIA exemptions generally, as well as to the more narrow issue of the BBC’s FOIA obligations. It remains to be seen how that reasoning plays out.

Finally, in this context, I note a number of forthcoming cases in which related issues concerning the applicability of Article 10 in the FOIA context will be considered. Those are Evans v 7 Government Departments and IC (EA/2010/0014) (judgment of UT awaited – involving Jonathan Swift QC, Tim Pitt-Payne QC and Julian Milford of 11KBW); Kirkhope v IC and National Archives (EA/2011/0185) (part-heard in the FTT – involving Jonathan Swift QC, Amy Rogers, Robin Hopkins and Joe Barrett of 11KBW); Kennedy v Charity Commission (due to be heard in the Court of Appeal on 21/22 February 2012 – involving Karen Steyn, Ben Hooper and Rachel Kamm of 11KBW); APPGER v ICO and FCO (due to be heard in the FTT on 27/28 February 2012, involving Karen Steyn, Joanne Clement and Robin Hopkins of 11KBW); R(Guardian News) v City of Westminster Magistrates Court (heard in the Court of Appeal on 7 February 2012 – judgment reserved).

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.  …”