Tag: EIR

CHARGING FOR PROPERTY SEARCH INFORMATION – IMPORTANT NEW TRIBUNAL JUDGMENT

Posted on | by Anya Proops KC

Anybody who has ever bought a property will know that property searches must be conducted as part of the process. Originally, it was the buyer who had to conducted the searches. However, following the introduction of the HIPs regime in 2007, it is now the seller’s responsibility. In tandem with the introduction of the HIPs regime, the Government introduced the Local Authorities (England) (Charges for Property Searches) Regulations 2008, which empower local authorities to charge for making property search information available to members of the public. However, importantly, those Regulations have to be applied in a way which does not, in effect, cut across the access regime afforded under the Environmental Information Regulations 2004 (EIR). This means that, in practice, it will often be the EIR which governs whether and to what extent local authorities can charge for making property search information available

In the recent case of East Riding of Yorkshire v IC & York Place, the Tribunal was called upon to determine the question of whether, on an application of the EIR, particular property search information should have been made available to a property search company free of charge. More particularly, the Tribunal had to determine whether the local authority: (a) was required to allow the company to inspect the information free of charge at the local authorities premises; or (b) was entitled to refuse inspection and make the information available by way of hard copy documents, for which a charge could be levied under r. 8 EIR. After having made a number of findings as to the weakness of certain aspects of the council’s evidence, the Tribunal went on to hold that the council ought in fact to have permitted the company to inspect the relevant records free of charge. This judgment is important both because of its careful examination of the principles relating to charging under the EIR and because of its implications for local authority charging regimes in respect of property search information. 11KBW’s Jane Oldham appeared on behalf of the council and Anya Proops appeared on behalf of the Information Commissioner. 

EIR EXCEPTIONS – WHAT DOES IT ALL ADD UP TO?

Posted on | by Timothy Pitt-Payne KC

In Ofcom v Information Commissioner [2010] UKSC 3 the Supreme Court was asked to consider how public authorities should approach the exceptions to disclosure set out in the Environmental Information Regulations 2004 (EIR).  Most of these exceptions are subject to a public interest test.  The public interest in maintaining an exception has to be measured against the public interest in disclosure.  Unless the public interest in maintaining the exception outweighs the public interest in disclosure, the information must be disclosed.

But what happens if there are a number of exceptions in play?  Do you look at each exception in turn, assessing the public interest in maintaining that exception as against the public interest in disclosure?  Or do you aggregate all of the exceptions, assess the combined public interest in maintaining them, and measure that combined interest against the public interest in disclosure?

In the Ofcom litigation, the Court of Appeal had decided in favour of aggregation.  The Supreme Court was inclined (by a 3-2 majority) to uphold that decision.  But the Supreme Court also recognised that the answer was unclear, and depended on the construction of Directive 2003/4/EC.  So the Court has referred the issue to the European Court of Justice.

There is now a practical difficulty:  in cases where the aggregation point might make a difference to the outcome, what should the Tribunal do? Should it follow the Court of Appeal?  Should it wait for the ECJ?  Or should it reach its own view on how the legislation should be interpreted?  And Ofcom is an EIR case: what about aggregation under FOIA?

In practice nobody will want the outcome of their case to turn on a point that may not be resolved for some years.  It will be much more attractive for parties to argue that aggregation makes no difference to the outcome of their case.

 

OFCOM & THE AGGREGATION OF PUBLIC INTEREST CONSIDERATIONS: UPDATE

Posted on | by Anya Proops KC

On 17 November 2009, the Supreme Court will hear the Information Commissioner’s appeal against the Court of Appeal’s judgment in Office of Communications v Information Commissioner [2009] EWCA Civ 90 (Ofcom). In Ofcom, the Court of Appeal held that, when multiple exceptions were engaged in respect of particular information, the public interest test provided for under regulation 12(1)(b) of the Environmental Information Regulations 2004 would operate so as to entitle the public authority to aggregate all the different public interest factors relating to all applicable exceptions in a single, compendious public interest balancing exercise. This judgment was controversial, not least because it represented a departure from the well-established approach of tailoring public interest considerations to the individual exception in issue. Notably, in a recent Information Tribunal decision, the Tribunal highlighted some of the practical difficulties posed by the adoption of the aggregate approach to the public interest test (South Gloucestershire v Information Commissioner (EA/2009/0032), §§48-52). 11KBW’s Clive Lewis and Akhlaq Choudhury will be appearing on behalf of the Commissioner in the Supreme Court.

DISCLOSING CONSULTANTS’ REPORTS UNDER THE EIR

Posted on | by Anya Proops KC

Yesterday, the Information Tribunal promulgated an important decision on the application of certain exceptions in the Environmental Information Regulations 2004 (EIR), South Gloucestershire Council v Information Commissioner & Bovis (EA/2009/32). The case concerned an application made by a developer (Bovis) for disclosure of information contained in a number of consultants’ appraisals. The appraisals had been commissioned by the council in respect of a proposed section 106 planning agreement. The agreement in turn related to a major development which Bovis was proposing to undertake in the council’s area. The appraisals had been commissioned in essence in order to assist the council in its negotiations with Bovis in respect of the section 106 agreement. The council had refused disclosure of some of the information in the appraisals, which largely consisted of financial information, on the basis that that information fell within the exceptions provided for under r. 12(4)(e) EIR (the internal communications exception) and r. 12(5)(e) EIR (the confidential/commercial information exception). The Commissioner held that neither of these exceptions was engaged.

 

On appeal by the council, the Tribunal held that the circumstances of the case were such that the council had not been entitled to treat the appraisals as an ‘internal communication’ for the purposes of r. 12(4)(e) (cf. the Tribunal’s decision in Secretary of State for Transport v Information Commissioner (EA/2008/0052): draft report on transport policy prepared by independent third party was an ‘internal communication’, particularly in view of the extent to which the third party had been ‘embedded’ in the public authority). However, the Tribunal went on to allow the council’s appeal on the basis that the information in the appraisals did constitute confidential, commercial information falling within the ambit of r. 12(5)(e). The Tribunal also held that the public interest balance weighed in favour maintaining the exception and, accordingly, that the council had been lawfully entitled to withhold the requested information.

 

In reaching the conclusion that r. 12(5)(e) was engaged in respect of the information, the Tribunal rejected arguments advanced by the Commissioner that r. 12(5)(e) would only be engaged in respect of confidential information where the duty of confidence was owed by the public authority to a third party. It held that r. 12(5)(e) applied equally to the authority’s own confidential information. Notably, in finding that the public interest balance weighed in favour of the information being withheld, the Tribunal relied in particular on the volume of information which the council had already disclosed relating to the section 106 process and the planning process more generally.

GOVERNMENT REPORT ON APPLICATION OF ENVIRONMENTAL INFORMATION DIRECTIVE

Posted on | by Anya Proops KC

Member States of the EU are subject to an obligation to report to the European Commission on the application of European Directive 2003/4/EC on public access to environmental information. Last week, the UK Government submitted its report to the Commission. The report highlights the Government’s experience of the application of the Environmental Information Regulations 2004 since they came into force in the UK on 1 January 2005. It is worth noting in particular Annex 1 to the report which contains a summary of tribunal decisions on the definition of ‘environmental information’ for the purposes of the Regulations. The Government is inviting comments on the report from members of the public.

House of Lords Grants Permission in Ofcom

Posted on | by Anya Proops KC

Last month the House of Lords granted the Information Commissioner permission to appeal the Court of Appeal’s judgment in Office of Communications v IC [2009] EWCA Civ 90 (‘Ofcom’). In Ofcom, the Court of Appeal considered the question of how the public interest test under regulation 12(5)(b) of the Environmental Information Regulations 2004 (‘EIR’) applied where a number of different exceptions were engaged in respect of particular requested information. It held that, rather than conducting discrete public interest balancing exercises under each individual exception, the public authority could effectively bundle all the public interest considerations relevant to the applicable exceptions into a single compendious public interest balancing exercise. The Commissioner has now been granted permission to appeal the judgment to the newly constituted Supreme Court. 11KBW’s Ahlaq Choudury is acting on behalf of the Commissioner.