As is well known, Section 35 of FoIA creates a class-based exemption from disclosure designed to protect the effective formulation of Government policy; and Section 36 creates an exemption related to effective conduct of public affairs. The scope of the Section 35 exemption is that information may be exempt if it relates to the formulation or development of Government policy. However, the wide scope of the exemption is narrowed by the provision that once a decision as to Government policy has been taken statistical information used to provide an informed background to the decision is no longer exempt. Moreover, in determining whether the public interest in maintaining the exemption outweighs the public interest in its disclosure, regard must be had to the particular public interest in the disclosure of factual information that has been used, or is intended to be used, to provide an informed background to decision making.
FoIA of course is domestic legislation. What is the position if the legislative proposal is at EU level and the information is held, not by a UK Government Department or the Welsh or Northern Ireland Assembly, but by the EU Commission? That was the issue that arose before the EU General Court in Joined Cases T-424/14 and T-425/14, Client Earth v European Commission, in which Judgment was given on 13 November 2015.
That was an environmental case. It was brought by Client Earth, a non-profit organisation whose aim is the protection of the environment. The case was concerned with Impact Assessments. There are of course specific rules at EU and UK level relating to disclosure of environmental information. Client Earth sought the annulment of two Commission decisions refusing, whilst its decision-making processes were still ongoing, to grant access to Impact Assessment. The refusals were upheld by the Court. The access was not sought pursuant to the specific rules on environmental information. The position was governed rather by EU Regulation1049/2001. The Regulation provides that decisions by EU Institutions such as the Commission should be taken as openly as possible. The fullest possible effect should be given to the right of public access to documents of the Institutions.
However, there are exemptions, to be interpreted strictly, under the Regulation. These include where it can and should be inferred that disclosure of the document would seriously undermine the Institution’s decision-making process, unless there is an overriding public interest in disclosure. This exemption was held to apply.
The basis of the Court’s decision was that, in the context of the preparation and development of policy proposals, including proposals for legislative acts, at an early and sensitive stage, the Commission may rely on grounds of a general nature relating to the need to preserve its “thinking space”, room for manoeuvre, and independence, the need to preserve the atmosphere of trust during discussions, and the risk of external pressures liable to affect the conduct of the ongoing discussions and negotiations. The Commission was therefore, in the Court’s judgment, entitled to presume, without carrying out a specific and individual examination of each of the documents connected with an Impact Assessment, that the disclosure of those documents would, in principle, seriously undermine its decision-making process for developing a policy proposal, for so long as it has not made a decision to adopt or abandon the proposal.