Throttling Environmental Information

April 27th, 2018

As is so often the way in information rights, the Upper Tribunal reaches a perfectly sensible decision and gives practical guidance which others can actually apply, only for the Court of Appeal to insist on saying mostly the same thing but less clearly and less helpfully. As a result, the Upper Tribunal then has to reconsider the area and steer the law back to a productive course.

So it was in Department for Transport & Driver and Vehicle Standards Agency & Porsche Cars GB Ltd v Information Commissioner & Cieslik [2018] UKUT 127 (AAC) (Cieslik), on the – to put it politely – potential interpretative difficulties on the issue of the meaning of “environmental information” under the EIR following the ‘guidance’ of the Court of Appeal in Department for Business, Enterprise and Industrial Strategy v Information Commissioner & Henney [2017] EWCA Civ 844 (see here). And the judgment of Judge Markus QC in Cieslik is a genuinely important and valuable exercise in course correction.

The requestor had sought information from the DVSA which related to the safety evaluation test it had carried out on the Porsche Cayman R with particular reference to a purported throttle malfunction. The test itself was for vehicle safety purposes and did not address environmental standards. The requestor, who owned a Cayman and who is therefore due relatively little sympathy, was advancing the underlying concern that the Cayman had been deliberately fitted with a throttle with the design it did in order for Porsche to manipulate the noise emission tests which had to be met, carried out by a different agency. (Porsche needless to say vigorously denies this and it is also fair to note that Judge Markus QC was obviously sceptical on the material she had of the plausibility, let alone proof, of the allegation.) Was this context sufficient to render the information environmental?

Yes, said the FTT because running the safety test meant running the car engine, which caused emissions, which affected the air, and because the wider context of the safety test was related to safety of driving and driving affects the environment. With the greatest of respect to the FTT, this was patently ludicrous, no-one was able to defend it on appeal, and the Upper Tribunal dismissed it in polite but tellingly brief terms in just three paragraphs: [33]-[35]. The FTT had confused the steps involved in carrying out an activity with the activity itself. It had not considered whether its approach gave rise to an impermissibly broad reading – contrary to the Glaswischnig principle of the CJEU – or how it could be justified on environmental awareness or participation grounds. Judge Markus QC pointed out that this sort of analysis would render virtually all human activity environmental, along with anything even remotely connected to cars (including economic forecasts or sales or manufacturing policies). The FTT’s approach strayed well beyond the ‘more than minimal connection’ analysis. It was rightly overturned.

That left the Upper Tribunal to remake the decision on whether the information was environmental. For the most part, the decision is highly fact-sensitive and the aspects of it which explain the legal principles are broadly the same as those above. In particular, the Upper Tribunal obviously felt that this sort of level of connection was firmly in the “too remote” box. A safety test which is not measuring environmental standards was not for environmental purposes and would not enable the public to be informed on the environment. “The state of the environmental compliance of the vehicle does not alter the nature or purpose of the safety test”: at [53]. Nor should one strain language to say that a feature of a particular product (the throttle of a car, the weight of a mobile phone) is a ‘measure’ or an ‘activity’ in EIR terms: at [58].

Of wider importance was the rejection by Judge Markus QC of a somewhat broad submission of the ICO that it was or could be sufficient that the information on the safety test might shed light on the environmental breach matters raised by the requestor (see at [62]), regardless of how strong the evidence for such concerns otherwise is (at [63]). The Upper Tribunal was having none of that. “The fact that a requester may wish to use information in order to advance an environmental case does not mean that the information itself is environmental” and the public authority (and ICO and FTT) cannot be “called on to determine the underlying environmental grievance held by the requestor in order to decide whether the information requested is environmental”: at [65]. That, as Judge Markus rightly put it, “puts the cart before the horse”. (The car before the horsepower?) Such an exercise was far too uncertain to have been the aim of the legislation. Here, the link was tenuous and no more than incidental. It is not sufficient for a party to look at issues with which the information is not concerned but with which it is merely connected: at [64].

As a result, Cieslik gives no small degree of comfort to those reading Henney and trying to work out what on earth was environmental information after it, and how anything could be argued not to be.

Tom Cross appeared for the Department and DVSA; Timothy Pitt-Payne QC for Porsche; Robin Hopkins for the ICO.

Christopher Knight

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