ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
JUDGE EDWARD JACOBS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE SULLIVAN
|- and -
|The Department For The Environment, Food
and Rural Affairs
Mr. Jonathan Swift QC and Mr Alexander Ruck Keene (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 28 & 29 November 2011
Crown Copyright ©
Lord Justice Sullivan:
" ….a public authority may refuse to disclose information to the extent that - …(e) the request involves the disclosure of internal communications."
On 1st May 2009 the Appellant requested an internal review. On 15th September 2009 the Respondent maintained its decision, relying on the exception in regulation 12(4)(e).
"…a public authority may refuse to disclose information to the extent that its disclosure would adversely affect - … (b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal nature"…. (d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law".
"There is no obligation on the Tribunal to consider any exception relied upon by a public authority that had not previously been relied upon; exceptions or exemptions raised for the first time before the Tribunal should only be considered if there is a reasonable justification" (para. 27).
The Tribunal found that there was no reasonable justification for the Respondent "overlooking" the two new exceptions in regulation 12(5) (b) and (d), and therefore declined to consider whether the remaining disputed information fell within those exceptions (paras. 33 and 34).
(a) There is no challenge to the Upper Tribunal's decision that in respect of information which is not environmental information a public body is entitled as of right under the Act to rely on new exemptions. While Mr. Facenna did not accept the correctness of this decision, he made no attempt to demonstrate that it was wrong as a matter of domestic law.
(b) The appeal has been presented upon the basis that there is no "middle way", as advocated by the Commissioner before the Upper Tribunal. Mr. Swift QC submitted on behalf of the Respondent that, upon a proper interpretation of the Directive and the Regulations, there was no statutory justification for a "middle way". While Mr. Facenna was reluctantly prepared to accept the Tribunal's approach in the present case as a second-best option if his primary submission – that there was no power to rely on new exceptions – failed, he did not make any submissions in support of a "middle way".
"to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. To this end the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted."
Access to environmental information upon request
"1. Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest
2. Subject to Article 4 and having regard to any timescale specified by the applicant, environmental information shall be made available to an applicant:
(a) as soon as possible or, at the latest, within one month after the receipt by the public authority referred to in paragraph 1 of the applicant's request; or
(b) within two months after the receipt of the request by the public authority if the volume and the complexity of the information is such that the one-month period referred to in (a) cannot be complied with. In such cases, the applicant shall be informed as soon as possible, and in any case before the end of that one-month period, of any such extension and of the reasons for it.
1. Member States may provide for a request for environmental information to be refused if:
(a) the information requested is not held by or for the public authority to which the request is addressed. In such a case, where that public authority is aware that the information is held by or for another public authority, it shall, as soon as possible transfer the request to that other authority and inform the applicant accordingly or inform the applicant of the public authority to which it believes it is possible to apply for the information requested;
(b) the request is manifestly unreasonable;
(c) the request is formulated in too general a manner, taking into account Article 3(3);
(d) the request concerns material in the course of completion or unfinished documents or data;
(e) the request concerns internal communications, taking into account the public interest served by disclosure.
Where a request is refused on the basis that it concerns material in the course of completion, the public authority shall state the name of the authority preparing the material and the estimated time needed for completion.
2. Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:
(a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;
(b) international relations, public security or national defence;
(c) the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;
(d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;
(e) intellectual property rights;
(f) the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law;
(g) the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;
(h) The protection of the environment to which such information relates, such as the location of rare species.
The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal. Member States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment.
5. A refusal to make available all or part of the information requested shall be notified to the applicant in writing or electronically, if the request was in writing or if the applicant so requests, within the time limits referred to in Article 3(2)(a) or, as the case may be, (b). The notification shall state the reasons for the refusal and include information on the review procedure provided for in accordance with Article 6.
Access to Justice
1. Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive.
2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse."
"94. In addition, a time-limit within which the public authorities must respond, such as that laid down in Article 3(4) of the Directive, is particularly conducive to legal certainty because it ensures that the person requesting the information is not left for an indefinite length of time in the dark as regards the outcome of his request and his legal position. In my view, this aspect merits special attention precisely in the context of a directive which is designed to guarantee public access to information held by the public authorities.
95. In that regard it should be assumed that the above mentioned requirement of legal certainty also arises in relation to the actual reasons for a refusal, especially where account is taken of the fact that Article 4 of the Directive provides for the possible review of both positive and negative responses issued by the public authorities and that the lawfulness of those responses must be assessed by reference to the reasons on which they are respectively based.
96. An interpretation under which a time-limit is not considered to apply to the requirement under Article 3(4) of the Directive to give reasons in the event of a public authority's refusal is not therefore compatible either with the spirit and purpose of that provision or with the Directive as a whole."
"32. The right to good administration creates for the administration an obligation to give reasons for its decisions. Such a statement of reasons is not merely a general expression of the transparency of the administration's actions, but is also intended, in particular, to give the individual the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in his applying to the courts. There is therefore a close connection between the obligation to give reasons and the fundamental right to effective legal protection.
33. Accordingly, it would be incompatible with both the right to good administration and the fundamental right to effective legal protection if a public authority could simply let the two-month time-limit provided for in Article 3(4) of Directive 90/313 expire and for this to be deemed to constitute a lawful refusal of a request for information on the environment. Logically, therefore, the Court has held that the individual must automatically be informed of the reasons for the refusal of his request, not necessarily at the same time as the actual refusal but in any event within the two-month time-limit.
37. If a public authority were permitted simply to let the time-limit prescribed for processing a request made to it expire rather than responding to it expressly, the obligation to give reasons which stems from Community law would be rendered meaningless. After all, contrary to the view taken by the defendants, a public authority's failure to respond cannot as such provide any explanation as to whatever reasons there may be for authorising or refusing the action requested. Thus under Article 3(2) and (3) of Directive 90/313, a request for information on the environment can be refused for a wide variety of reasons. The same applies to any refusal of access to documents under Article 4 of Regulation No 1049/2001. Indeed, a decision on the compatibility with the common market of a concentration or a measure of State aid generally requires the assessment of complex economic issues. The reasons which prompted the public authority in a particular case not to respond within the time-limit, if indeed it had formed an opinion at all within that period, could only be guessed at by those concerned by the decision (the applicant or third parties). Reliance on guesswork, however, would not satisfy the right of members of the public to good administration and their fundamental right to effective legal protection." (references omitted)
"35. It therefore follows from the judgment in Commission v France, cited above, that whereas, so as to grant effective judicial protection in accordance with Article 4 of Directive 0/313, the said directive does not preclude the fiction of implied refusal of a request for access to information where there has been a failure to respond within two months, by virtue of Article 3(4) of the directive it is unlawful for such a decision not to be accompanied by reasons when the two-month time-limit expires. In those circumstances, whilst the implied refusal does constitute a 'response' for the purposes of Article 3(4) it must be regarded as unlawful.
36. Accordingly, the answer to the third question must be that Article 3(4) of Directive 90/313, in conjunction with Article 4 thereof, does not preclude, in a situation such as that in the main proceedings, national legislation according to which, for the purposes of granting effective judicial protection, the failure of a public authority to respond within a period of two months is deemed to give rise to an implied refusal which may be the subject of a judicial or administrative review in accordance with the national legal system. However, by virtue of Article 3(4) it is unlawful for such a decision not to be accompanied by reasons when the two-month time-limit expires. In those circumstances, the implied refusal must be regarded as unlawful."
(1) The relatively short time within which the initial decision to release, or to refuse to release (with reasons) must be made.
(2) The broad scope of the review process under Article 6.
(3) The balance that has to be struck between the public interest in the prompt release of environmental information and the need to avoid harm to the other important public interests listed in Article 12(2).
Lord Justice Lloyd:
Lord Justice Carnwath: