INTERNAL FIXTURES ARE NOT ‘LANDSCAPE’

September 19th, 2011 by Rachel Kamm

The Tribunal, in Black v Information Commissioner (EA/2011/0064), has considered the definition of environmental information in the Environmental Information Regulations 2004 (“the EIRs”). The heart of the definition is “information on the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape, and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements”. 

It is of course important that public bodies spot when requested information falls within this definition, because any such request must be considered under the EIRs instead of the Freedom of Information 2000 (“FOIA”). It is fairly common for the requester and the public body to assume that a request has been made under FOIA, but to realise subsequently that the information should have been considered under the EIRs. The definition of environmental information is broad and sometimes surprises people by capturing information which does not appear to be environmental. For example, Robin Hopkins recently discussed on this blog how the “landscape” element of the definition has been interpreted broadly so as to include a monument. The Tribunal’s decision in Black is relatively unusual in that the appellant argued that all of the requested information fell within the EIRs, but the Tribunal rejected this submission. 

The appellant sought information on internal fixtures, such as fireplaces and chimney pieces, in English Heritage properties.  He relied on the Advocate General’s opinion in the case of Stichting Natuur en Milieu (Case C-266/09) to argue that buildings and structures were part of the landscape, which was not limited to the natural environmental. The appellant also argued that the EIRs had failed to properly implement the Directive. The Tribunal found that the opinion in Stichting Natuur en Milieu did not support the appellant’s submission and concluded that “On a plain reading of both the Directive and the EIR (which are identical in any event) the Tribunal finds that information relating to the internal fixtures of a building does not constitute “environmental information” within the definition, whether as landscape or otherwise”.   

Rachel Kamm

 

“ENVIRONMENTAL INFORMATION” INCLUDES NAMES OF OFFICIALS DRAWING UP MONUMENTS POLICY

May 25th, 2011 by Robin Hopkins

Omagh DC v IC (EA/2010/0163) is the newest decision on the scope of “environmental information” under the EIR. It is notable both for the broad interpretation it gives to the “landscape” element of that definition, and for the relevance the Tribunal ascribed to the purpose of the request.

The case concerned a memorial on Council-owned land commemorating IRA members who died during the hunger strikes of 1981. The Council undertook an Equality Impact Assessment on its policy on “Disposal of Land for the Purpose of Erecting or Retaining a Memorial or Monument”. The requester sought the names, departments and job titles of those Council officials responsible for that Assessment, as well as the Council’s letter to the Equality Commission.

The issue for the Tribunal was whether this should have been dealt with under FOIA or the EIR. The Council argued that the applicant’s queries were not about the environment, but about a process being used to inform a consultation on a Council decision. The Commissioner contended that the requested information was “environmental information” within the meaning of reg. 2(1)(c) EIR because the assessment was a “measure which is likely to affect the land and landscape”, and that details of those officials responsible for drafting the policy were not so far removed from this “measure” as not to have an effect on it.

The Tribunal has agreed with the Commissioner. It accepted that the Assessment could be fairly described as an investigative step prior to a potentially controversial final decision affecting or protecting the landscape, and also that the scope for “visual as opposed to cultural impact is capable of being regarded as minor” in this case. Nonetheless, it observed that under reg. 2(1)(i), the test is not only whether a measure affects or is likely to affect one of the listed elements but also whether a measure is “designed to protect” those elements; therefore, whether a change is likely is not determinative. The title of the Assessment implied a possible outcome preserving the status quo. The Tribunal was clear that:

“Only the connection with an impact on land or landscape links the concerns in this case into environmental rights. Had the memorial in question been inside a public building, the landscape context would have been absent but the cultural concerns would not have been different”.

Interestingly, although it recognised the “motive blind” principle, the Tribunal took the view that motive could be relevant not to the decision on whether or not to disclose the information (with which the Tribunal was not concerned) but to determining whether or not information is “environmental”:

“… both context and the motive of the requester are potentially relevant considerations. If the requester appeared to be wholly unconscious of an environmental aspect or import to his request, and stressed other reasons for his interest in the information, he could not be said to be denied environmental access rights if his request is not considered under EIR… If the Complainant had shown no evidence of concern about landscape impact, or if the allocation of the issue to one framework rather than the other could have led to a material difference in treatment of the substantive issue, these would have been relevant factors to take into account”.

Robin Hopkins

 

SOWING OF GM-CONTAMINATED SEEDS IS NOT AN ‘EMISSION’ FOR THE PURPOSES OF THE EIR

March 10th, 2011 by Anya Proops QC

Both the Environmental Information Regulations 2004 (EIR) and the Directive from which it derives (Directive 2003/4/EC) emphasise the importance of permitting the public access to information on ‘emissions’ – see further the fact that a number of the exceptions provided for in the EIR and the Directive are specifically disapplied in the case of emissions information (see r. 12(9) EIR and Art. 4(2) of the Directive). However, one question which is not always easy to answer in practice is what will constitute ‘an emission’ for the purposes of the legislation. In part, this difficulty arises because neither the EIR nor the Directive contains any definition of the word ‘emission’ (although the concept is examined in the Implementation Guide to the Aarhus Convention, which the Directive was itself designed to implement). The question of what will constitute an ‘emission’ for the purposes of the EIR and the Directive was considered for the first time by the Information Tribunal in the case of GM Freeze v IC & DEFRA (EA/2010/0112). In that case, the First Tier Tribunal held (obiter) that the word ‘emission’ did not include the deliberate sowing of genetically-modified seed. The Tribunal’s decision is also worth considering in view of the analysis it contains on the application of the personal data exception provided for in r. 13 EIR.

 

LATEST DECISION NOTICE ON “EMISSIONS”

February 28th, 2011 by Robin Hopkins

At the 11KBW Information Law seminar last week, I mentioned the imminent Tribunal decision in the GM Freeze case, which will consider how the term “emissions” is to be construed for EIR purposes. On a related note, readers may be interested to know that the ICO last week issued a decision notice requiring Ofcom to disclose information about electromagnetic radiation from ethernet power line adaptors, on the grounds that this fell within the definition of “information on emissions” under the EIR. Read the DN here.

 

PAYMENTS TO SENIOR PUBLIC SECTOR EMPLOYEES: ROUNDUP OF RECENT PERSONAL DATA CASES

February 22nd, 2011 by Robin Hopkins

The FOIA update paper given at last week’s 11KBW Information Law Seminar provides a roundup of recent caselaw in a few of the most common areas of Tribunal litigation.

One is commercially sensitive or confidential information: in particular, Veolia and its aftermath.

Another is information on planning applications and property developments: in particular, those cases subsequent to South Gloucestershire, namely Bristol City, Bath & North East Somerset and Elmbridge.

A third area is personal data: here the recent cases of Dun, Bryce, Ferguson and Ince have all – like the cases mentioned above – been covered in Panopticon posts. Two others to take note of, however, both in the context of public sector pay (other than salaries).

One concerns bonus payments to public sector employees. Davis v IC and Olympic Delivery Authority (EA/2010/0024) saw the Tribunal distinguish between bonus information and performance assessment information. It ordered disclosure of certain information relating to the bonuses of senior employees of the ODA: the maximum performance-related bonuses to which the chief executive and communications director were contractually entitled, and the percentage of the maximum available bonus actually paid to certain other members of senior management. The Tribunal decided, however, that details of the performance targets which individuals failed to hit to 100% satisfaction should not be disclosed.

The other recent case on the personal data exemption is Pycroft v IC and Stroud District Council (EA/2010/0165). The context was an auditor’s report which observed that the local authority’s former Strategic Director of Housing “did not ensure that staff had taken ownership of managing the budgets”. The applicant requested the details of this Director’s early retirement package. The Commissioner found that disclosure of this information would not be fair, and the Tribunal agreed. It should be noted by those dealing with requests for information about payments to allegedly poorly-performing public sector employees.

 

TRIBUNAL ORDERS DISCLOSURE OF VIABILITY REPORT FROM HAMPTON COURT PLANNING APPLICATION

January 7th, 2011 by Robin Hopkins

Elmbridge Borough Council v IC (Additional Party: Gladedale Group Limited) (EA/2010/0106) is the latest Tribunal decision concerning requests for information about planning applications (see my posts on other such cases here and here, and Anya’s post on an earlier important planning case here). In particular, the disputed information here comprised a viability report containing details on costs, revenues, values and finances of a development in the vicinity of Hampton Court. The Council pleaded commercial confidentiality and sought to rely on regulations 12(5)(e) and 12(5)(f) EIR. The Commissioner found that these exemptions were not engaged. The Tribunal agreed, and ordered disclosure.

In so doing, the Tribunal confirmed that the confidentiality of this information must be objectively required at the time of the request (rather than, for example, when the information was created or passed to the Council) in order to protect a relevant interest. The Tribunal also confirmed that it is not enough that some harm might be caused by disclosure, but that it is necessary to establish (on the balance of probabilities) that some harm to the economic interest would be caused by disclosure.

A crucial feature of this case was the lack of evidence offered to demonstrate commercial confidentiality or prejudice. The Tribunal observed that:

“Throughout the investigation and consideration of the issues leading to the Decision, the Respondent consistently and repeatedly sought evidence from the Appellant to support their contention that the subject information was commercially sensitive or that its release would be prejudicial to the third parties concerned. It is noted by this Tribunal that the information made available to the respondent amounts to assertions and speculation by the interested parties. There is a notable absence of independent or objective evidence to support the assertions or speculation put before the Respondent.”