Tag: environmental information

“MANIFESTLY UNREASONABLE” REQUESTS UNDER THE EIR: RELEVANCE OF COST OF COMPLIANCE AND DUTY TO ADVISE AND ASSIST

Posted on | by Robin Hopkins

Little v ICO and Welsh Assembly Government (EA/2010/0072) is the latest application of the principles in DBERR v IC and Platform (EA/2008/0096) concerning “manifestly unreasonable” requests under regulation 12(4)(b) EIR. In particular, it deals with a public authority’s reliance on that exemption based on the excessive time which would be required to comply with the request.

The Tribunal confirmed that manifest unreasonableness – whilst not a condemnatory term – did imply a higher threshold than mere unreasonableness. A certain obviousness was required. Beyond that, no more precise definition could be given, and terms such as “self-evidently” were not applicable. The cost of compliance is relevant, but only as one factor among many. A request may be manifestly unreasonable if the cost of compliance is disproportionate the importance of the issue, or if compliance would divert resources so as significantly to disrupt the public authority’s normal activities. These, however, are only examples, and each case must be decided on its own facts. On the facts of this case (which concerned information on the disposal of land owned by Forestry Commission Wales for the purposes of wind farm development) the requests were manifestly unreasonable.

Two points of general interest emerge.

First, the “cost of compliance” provision under section 12 FOIA may not be used as a yardstick for determining manifest unreasonableness under regulation 12(4) EIR. The provisions are entirely separate, and one offers no guidance on the other.

The second is that compliance with the duty to advise and assist under regulation 9 EIR is a precondition for reliance on regulation 12(4)(c) (the exemption applicable where a request is too general) – but not for reliance on manifest unreasonableness under regulation 12(4)(b). This does not mean, however, that the duty to advise and assist is irrelevant to regulation 12(4)(b). The Tribunal was clear that “a public authority should expect, in the appropriate case, to have to engage with the request, and the requester, to consider whether a more manageable and reasonable formulation of the request can be achieved, before refusing a request for being manifestly unreasonable”.

The Tribunal also observed that the preparation of a 20-page list of files which might contain the requested information was not required under regulation 9 in this case – but once such a list has been prepared, the failure to provide the requester with a copy might cast a public authority’s efforts under regulation 9 in an unfavourable light.

COUNCIL ENTITLED TO WITHHOLD PROPERTY DEVELOPER’S FINANCIAL MODEL: BRISTOL CITY DISTINGUISHED

Posted on | by Robin Hopkins

Bath & North East Somerset Council v IC (EA/2010/0045) is the latest application of the ‘commercial confidentiality’ exemption under regulation 12(5)(e) EIR to a request for information on agreements between a local authority and a property developer.

 

The council and the developer entered into discussions about building homes on 70 acres of brownfield land within a UNESCO World Heritage Site. Only a small proportion of this land was owned by the council, the rest being owned by the developer, who would also bear 100% of the risk of the project. The proposed £500m project would deliver 50% of the council’s new homes target for the next 10 years – the council was therefore acting as both beneficiary and planning authority.

 

With a potential section 106 agreement in mind, the council and developer reached a co-operation agreement, whereby the developer taking an ‘open book’ approach, i.e. making its financial models and reports available to the council. This was the information at issue before the Tribunal.

 

The Tribunal found that the public interest favoured maintaining the exemption. In so doing, it distinguished this case from Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012) – on which, see my post here and article in the Local Government Lawyer here – where disclosure of the information was ordered. Bristol City concerned a viability assessment designed to show that a hypothetical scheme was not viable; that assessment used generic, industry-level pricing. In contrast, this case concerned detailed and developer-specific financial information about an actual proposal. The commercial sensitivities differed materially.

 

Disclosure of such information, held the Tribunal, would lead to the developer refusing to provide any further ‘open book’ information, which would stymie this particular development and dissuade developers from future ‘open book’ co-operation. The Tribunal was also impressed by the availability of alternative scrutiny mechanisms in this case. It was less impressed with the council’s argument that disclosure of the disputed information would damage its reputation with developers.

 

The Tribunal did order the disclosure of consultants’ reports and emails, with commercially sensitive information redacted. The developer’s financial model however, could not be redacted, and could be withheld. On this last point, a notable practical issue emerged: both the council and the Commissioner had interpreted the request as being for a static version of the developer’s financial model. A ‘live’ model – i.e. a spreadsheet containing visible formulae – is another matter. The Tribunal warned that in future cases, clarification should be sought from the requester.

PLANNING DECISIONS & HISTORIC BUILDINGS: PUBLIC SCRUTINY TRUMPS COMMERCIAL CONFIDENTIALITY

Posted on | by Robin Hopkins

Local planning authorities will wish to take careful note of the recent Tribunal decision in Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012), which will please residents’ associations, conservation groups and others wishing to scrutinise planning decisions about historic buildings.

 

PPG 15 (a Planning Policy Guidance document) requires that, where a building is listed or makes a positive contribution to a conservation area, it should only be demolished if there is “clear and convincing evidence that all reasonable efforts have been made to sustain existing uses or find viable new uses and these efforts have failed”. Bristol CC granted permission to demolish a listed building in its ownership, relying for PPG 15 purposes on the developer’s viability reports which apparently showed alternative uses of the building to be commercially unviable. It subsequently refused to disclose those reports, relying on the exemption at regulation 12(5)(e) of the EIR 2004, which applies to the extent that disclosure “would adversely affect … the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.

 

The requesters argued that a reasonable person would not regard these reports as confidential because the planning process is one that assumes and requires public involvement. The Tribunal disagreed, and found that regulation 12(5)(e) was engaged.

 

It went on to find, however, that the public interest favoured disclosure, given the decisiveness of these reports in a matter which had aroused substantial local controversy. The Tribunal considered it proper to take into account the “general mismatch between the resources of developers and residents’ groups” and noted that “so far as PPG 15 viability reports are concerned, it seems to us that developers will not be able to refuse to supply them if they want to obtain the relevant consent but that, given their hypothetical nature, it may be possible for them to construct such reports in a way that does not reveal sensitive commercial information specific to themselves”.

 

The Tribunal stressed that it was not setting down a general precedent concerning planning decisions, and that absent PPG 15 (or, presumably, its successor guidance PPS 5) or council ownership of the building in question, its decision might have been different. Where those two factors are present however, public accountability trumps commercial confidentiality.

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. 

Revising FOIA?

Posted on | by Timothy Pitt-Payne QC

Tucked away in Jack Straw’s House of Commons statement (24th February 2009) about the veto on disclosure of the Iraq War Cabinet minutes is the following intriguing passage:

Shortly after he became Prime Minister, my right hon. Friend the Prime Minister established a high-level inquiry into the 30-year rule under the chairmanship of Mr. Paul Dacre of the Daily Mail. That report, published last month, proposed a reduction from 30 to 15 years of the time after which Cabinet minutes and other papers would automatically be released. I have already told the House that the Government favour a substantial reduction in the 30-year limit. In that context, the report also recommended that we consider protection under the Act for certain categories of information.

The reference to the Dacre Report relates to the following section in chapter 8 of the Report:

8.7 As we noted in Chapter Five, there are genuine concerns among some ministers and civil servants about the early release of particularly sensitive types of papers … Given that we are recommending a substantial reduction to the 30 year rule, we believe that the government may wish to look again at the exemptions set out in the FoI Act.

8.8 We therefore recommend that, in parallel with the adoption of a 15 year rule, the government, in consultation with interested parties, may wish to consider whether there is a case for enhanced protection of such categories of information.

So what may be under consideration is a change along the following lines.  The 30 year rule would be replaced by a 15 year rule; and at the same time some categories of information that are at present covered by a qualified exemption under the Freedom of Information Act 2000 would become subject to absolute exemption.  Possible candidates for this treatment might be Cabinet minutes, or some forms of policy advice in central Government.  A change of this nature might not even need primary legislation; an attempt could be made to implement the change by making an order under section 7(3) of the Freedom of Information Act.  This was the technique that was used in the recent (abandoned) attempt to amend FOIA in relation to MPs expenses:  see https://news.bbc.co.uk/1/hi/uk_politics/7839281.stm

I would make two brief comments.  One is that the Dacre proposals in relation to the 30 year rule envisage that the change to a 15 year rule would be made over a long transitional period, coming fully into effect by 2025.  Presumably any change in the FOIA exemptions would not be subject to any corresponding transition.  A second is that the Environmental Information Regulations 2004 (EIR) could not be amended in the same way, since they implement a European Directive.  So if the FOIA exemptions are tightened, expect a great deal more argument about whether particular requests fall within FOIA or EIR.

For Jack Straw’s statement see:

https://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090224/debtext/90224-0004.htm#09022444000162

For the Dacre Report see:

https://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf

Court of Appeal Gives Judgment in Ofcom Case

Posted on | by Anya Proops KC

On 20 February 2009, judgment was handed down in the case of Office of Communications v Information Commissioner [2009] EWCA Civ 90. This is the first case under the Environmental Information Regulations 2004 (EIR) to be heard by the Court of Appeal. The Information Commissioner was represented by Akhlaq Choudhury of 11KBW. This is an important judgment affecting the general approach to the public interest test in determining whether information under the EIR should be disclosed. The judgment is also relevant to the application of the public interest test under FOIA. The case concerned a request made to Ofcom (the regulatory body for radio communications) for the disclosure of information as to the location of mobile phone masts, and in particular for that information to be disclosed in a format that would enable the requester to manipulate the underlying data using data-handling applications. Ofcom resisted disclosure on the basis that it would prejudice (a) public safety (by identifying mast locations to criminals) and (b) the intellectual property rights of the Mobile Network Operators (such rights being the database rights in the information). The Information Tribunal considered that there was a strong public interest in disclosure given, amongst other matters, the benefit to epidemiological research as to the effects of mobile phone mast radiation on the health of the public. The Tribunal considered that it was entitled to take that public interest into account notwithstanding the fact that such research would be likely to involve an infringement of database rights. In addressing the public interest balance, the Tribunal took the then well-established course of separately weighing the public interest in maintaining each of the exceptions relied upon against the public interest in disclosure. It did not aggregate all the public interest factors against disclosure. The Tribunal found that the public interest balance favoured disclosure.

On the general point of principle, namely the approach to be taken in weighing the public interest in maintaining the exemption against the public interest in disclosure, the Court of Appeal disagreed with the Tribunal’s approach. The Court held that the public interest in maintaining each exemption should be aggregated and weighed against the public interest in disclosure. An exemption-by-exemption approach was still permissible provided that the matter is also looked at in the round at the end of the process by considering whether the aggregate public interest in maintaining the applicable exemptions outweighs the public interest in disclosure. However, the Court upheld the Tribunal’s’ approach in taking into account a factor as supporting the public interest in disclosure even where that factor involves a breach of third party intellectual property rights. The Court held that the legislative scheme is such that it is permissible to take such factors into account as an aspect of the public interest in disclosure. The matter was remitted to the Tribunal to reconsider the public interest balance in accordance with the approach laid down by the Court.