Don’t mention the bigger picture

The definition of ‘environmental information’ is notoriously wide. Notorious too is the difficulty of applying it and the lack of binding authority on how to go about the task.

To date the leading authority has been the Upper Tribunal’s decision in DECC v IC and Henney [2015] UKUT 0671 (AAC). Now we have BEIS v IC and Henney [2017] EWCA Civ 844. It’s the same appellant under a different name, and the same approach under a different label: in a nutshell, the Court of Appeal agreed with everything that the Upper Tribunal did, except for calling it ‘the bigger picture approach’.To recap: the case concerns Mr Henney’s request in 2013 to the department then known as DECC for a copy of a Project Assessment Review (PAR) of a particular subset (the data and communications component) of the government’s Smart Meter Programme (SMP). Everyone agrees that the SMP is a measure affecting the environment: one of its aims is to reduce CO2 emissions. Conversely, for the purposes of the argument in the Court of Appeal at least, it was assumed that the PAR, and the data and communications component itself, did not have this effect. The question was whether and in what circumstances one can look to the effects of a measure beyond that with which the information is most directly concerned, in order to render it ‘information on a measure likely to affect the environment’ – and so within the definition of environmental information at reg. 2(1)(c) of the EIR.

The UT held that it was permissible to have regard to ‘the bigger picture’ in considering whether the information at issue was ‘information on’ some broader measure that affects the environment, provided that there was a ‘sufficient connection’ between the information and the wider measure.

BEIS (the successor to DECC) argued that the UT’s approach impermissibly allowed the context of the information to become its subject.

No so, said the Court of Appeal. Information can be ‘on’ more than one measure and the definition does not require that the measure which it is primarily ‘on’ be the one with the environmental effects; nor that the information is directly or immediately concerned with that measure.

Of course, there must be limits – and the discussion of what those limits are will be the passage of most practical importance to future tribunals. Ultimately, the test is simply whether the information is ‘on’ the measure that affects the environment. Some glosses of the word ‘on’ were offered: information is “on” a measure if it is about, relates to or concerns the measure in question (para 37). However, perhaps recognising that there are limits to how far one can dissect a monosyllable, the Court turned (at paras 47-48) to the underlying purpose of the Directive: to promote more effective public participation in environmental decision-making, greater awareness of environmental matters, and ultimately a better environment.

The Court went on to uphold the UT’s application of the test on both the linguistic and the purposive basis. The PAR on the communications and data component was ‘on’ the SMP because it was an integral part of it and critical to its success (para 53). What’s more the public would be better able to contribute to environmental decision-making for having seen the PAR because they would be better placed to comment on the appropriate data model and so help to achieve the environmental objectives of the SMP (para 54).

In short, the CA barely departs from the UT’s decision, other than to encourage us to check whether disclosure would or would not advance the purposes of the Aarhus Convention and the Directive as a way of testing whether there is a ‘sufficient connection’ between the information and the environmental measure. And of course, to deprecate the phrase ‘the bigger picture’: apparently using it might lead you into the error of looking for tenuous connections, even if the Upper Tribunal managed to avoid that trap.

Finally, if anyone happens to be interested in PARs and SMPs for their own sake, you will have to wait. All of the above is just a determination of the preliminary issue of which access regime applies. And BEIS has applied to the Court of Appeal for permission to appeal….

Peter Lockley

Akhlaq Choudhury QC and Tom Cross appeared for BEIS

Robin Hopkins appeared for the Information Commissioner