England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		17th March 2008

1. MR JUSTICE MITTING: The Export Credit Guarantee Department ("ECGD") is a Department of State. It is currently set up under the Export and Investment Guarantees Act 1991. Its role is to facilitate the export of goods from the United Kingdom and to insure overseas investment made by United Kingdom entities. It writes a mixture of financial guarantees and export insurance policies to that end. In carrying out its functions it takes into account other government policies relating to the activities in which it is interested.
2. In particularly complex or sensitive cases, and to that end, it invites comment from other government departments on projects which it has been invited to support. One such project was a scheme to develop offshore oil and gas fields off the north-east coast of Sakhalin Island. The scheme in 2003 was to be undertaken by a consortium in which Shell had a majority stake. Changes have occurred since to the consortium arrangements, so that as from early 2007 the Russian entity Gazprom has assumed a 50 per cent interest in the project.
3. Support for approximately US$650 million-worth of project finance was sought. The scheme will have, if implemented, an impact, potentially great, on the habitat and feeding grounds of the Western Grey whale and other environmental impacts. The survival of that species is endangered. The side effects of the scheme may prove terminal to it. The scheme has accordingly attracted the adverse interest of environmental groups, including Friends of the Earth, the first respondent to this appeal.
4. On 28th February 2003 ECGD notified DEFRA, DFID, DTI, FCO, MOD and TPI (now known as UKTI) and invited responses by 14th March 2003. Three were forthcoming: from the FCO, DEFRA and the DTI. No decision on the application has been made and, I am told, on 29th February 2008 the application was withdrawn, so that no decision upon it will ever be made.
5. On 11th March 2005 Friends of the Earth requested that ECGD make available to it the following information:

"The correspondence or notification from ECGD to the Relevant Government Departments notifying them that an application (or prospective application) was being treated as 'potentially sensitive' and requesting comments; and

Any and all information received from the relevant government departments in response to that notification/request in relation to the Sakhalin LNG project."

6. The request was made under regulation 5(1) of the Environmental Information Regulations 2004, SI 2004/3391.
7. On 4th July 2005 ECGD informed Friends of the Earth than in its view the request involved the disclosure of internal government communications, which were exempt from disclosure under regulation 12(4)(e). It nevertheless disclosed its request for information, but refused to make available the three responses.
8. Friends of the Earth requested a review. ECGD maintained its refusal. During the course of that process it became apparent that a response had been received from DEFRA, which was not a department identified by Friends of the Earth in its original request.
9. On 24th November 2005 Friends of the Earth applied to the Information Commissioner for a decision under Part VI of the Freedom of Information Act 2000 and regulation 18 of the 2004 regulations. By a decision notice of 6th September 2006 the Information Commissioner upheld ECGD's refusal. Friends of the Earth appealed to the Information Tribunal. By a decision promulgated on 20th August 2007 the Information Tribunal allowed the appeal and ordered disclosure of all the information requested by Friends of the Earth.
10. After a thorough and careful review of the evidence given and arguments advanced to it, the Information Tribunal concluded that, on balance of probabilities, ECGD:

"... has failed to demonstrate that there is a sufficiently demonstrable public interest in withholding the interdepartmental responses to the case notification in March 2003 as to outweigh the public interest in disclosure." (see paragraph 52 of its decision)

11. Before I turn to the grounds upon which its decision is challenged, it is necessary to set out the statutory background.
12. The origin of the regulations is to be found in a Directive of the European Parliament and of the Council of 28th January 2003. The origin of that Directive was a proposal by the Council and a Draft Directive dated 29th June 2000. In its explanatory memorandum the Council observed in relation to the key operational article, Article 4:

"Directive 90/313/EEC lays down a general principle of public access to environmental information. However, in order to protect certain legitimate interests, there have to be provisions for exempting information from disclosure. These exceptions must be very tightly drawn in order not to weaken the general principle of access and to enable the Directive to actually meet its objective in practice. ...

It should also be acknowledged that public authorities should have the necessary space to think in private. To this end, public authorities will be entitled to refuse access if the request concerns material in the course of completion or internal communications. In each such case, the public interest served by the disclosure of such information should be taken into account."

13. In the Draft Directive, the relevant operative parts of Article 4 stated:

"1. Member States may provide for a request for environmental information to be refused if:

...

(c) the request concerns material in the course of completion or internal communications;

In each case the public interest served by the disclosure shall be taken into account."

14. In the words which conclude subparagraph (2):

"In each case, the public interest served by the disclosure shall be weighed against the interest served by the refusal. Access to the requested information shall be granted if the public interest outweighs the latter interest. ..."

15. As passed into Community law, Article 4 was altered so as to produce a stronger emphasis upon the public interest in disclosure. The recitals to the Directive set its context, in particular recitals 1 and 16:

"(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment. ...

(16) The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. ..."

16. Article 1 set out the objective of the Directive:

"(a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; ..."

17. Article 2 defined various terms, including "environmental information". Article 3 provided a basic structure for access to environmental information on request and Article 4 set out the sections.
18. For present purposes only Article 4(1)(e) and the words which follow Article 4(2) need be quoted:

"1. Member States may provide for a request for environmental information to be refused if:

...

(e) the request concerns internal communications, taking into account the public interest served by disclosure. ...

2. 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."

19. As will be apparent by comparison of the Directive as passed into law and as originally proposed, the words "taking into account the public interest served by disclosure" have been inserted into Article 4(1)(e) and "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" have been added to the concluding words of paragraph 2. Those added words clearly lay greater emphasis on the public interest in disclosure and upon the need to confine exceptions to particular cases than did the original draft.
20. The Directive has direct effect as regards its object in domestic law, but it is otherwise not of direct effect. It is, however, a powerful aid to the interpretation of domestic legislation passed into law to give effect to it.
21. The 2004 regulations were the product. Regulation 2 defined, amongst other terms, "environmental information". Regulation 5 provides for a duty to make environmental information held by a public authority available upon request, subject to the exceptions which follow. Regulation 12 contains the exceptions. The relevant parts provide:

"12(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if -

(a) an exception to disclosure applies under paragraphs (4) or (5); and

(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

(2) A public authority shall apply a presumption in favour of disclosure.

...

(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that -

...

(e) the request involves the disclosure of internal communications.

(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect ..."

There are then set out a series of interests, including, unsurprisingly, international relations, defence, national security and public safety.

22. Regulation 18 applies the procedural facilities established under the Freedom of Information Act 2000 to appeals under the regulations. Under section 50 of that Act, any person may apply to the Information Commissioner for a decision when a request for information has been made to a public authority. Sections 57 and 58 provide for appeals to the Information Tribunal against the decision of the Commissioner. Section 59 provides for an appeal to this court in England and Wales from a decision of the Tribunal on a point of law.
23. As is evident from the words of regulation 12, potentially exempt information is dealt with in two categories or classes. First, under regulation 12(4), where the information falls into one of five classes, including that identified in (e), the disclosure of internal communications, regulation 12(5) provides for exemption where disclosure would adversely affect a number of interests. In this the regulations mirror the provisions for exempt information found in Part II of the 2000 Act. The public authority, the Commissioner and the Tribunal should, when making decisions, bear this distinction in mind. Where an item of information falls within one of the classes identified in regulation 12(4) it is not necessary, for the provisions of 12(1) and (2) to be engaged, that prejudice to any particular interest should be disclosed. When regulation 12(5) is in issue, it is.
24. Regulation 12(2) contains a presumption in favour of disclosure. It is, I believe, common ground that that provision serves two purposes: (1) to provide the default position in the event that the interests are equally balanced; (2) to inform any decision that may be taken under the regulations.
25. The task of the authority, Commissioner and Tribunal under regulation 12(1) is, first of all, to identify whether or not the information falls within any of the potentially exempt classes set out in regulation 12(4) and (5), and then "in all the circumstances of the case" to determine whether the public interest in maintaining the exemption outweighs that in disclosing the information. When performing that function, the task of the authority, the Commissioner and the Tribunal is plainly fact-specific.
26. The approach which the authority, the Commissioner and the Tribunal should adopt to those provisions was set out in two decisions of the Tribunal. First, in Department for Education and Skills v Information Commissioner and the Evening Standard, a decision promulgated on 19th February 2007 and, secondly, in Secretary of State for Work and Pensions v Information Commissioner, a decision promulgated on 5th March 2007. In the first case the Tribunal observed in paragraph 75(i) of its decision that:

"The central question in every case is the content of the particular information in question. Every decision is specific to the particular facts and circumstances under consideration. Whether there may be significant indirect and wider consequences from the particular disclosure must be considered case by case."

27. In the second case, in paragraphs 23 and 24 the Tribunal observed:

"23. The exemption in section 35(1)(a) [of the 2000 Act] is a 'class' exemption rather than a prejudice-based exemption. That is to say, in order for the exemption to be engaged the public authority does not need to demonstrate that any specific prejudice or harm would flow from the disclosure of the information in question.

24. Nevertheless, because this is a qualified exemption it is necessary to consider whether the public interest in maintaining the exemption outweighs the public interest in disclosure of the information sought. In carrying out this exercise it is relevant to consider what specific harm would follow from the disclosure of the particular information in question."

28. I commend both of those statements of principle. Although they are expressed under the 2000 Act, they apply word for word and with equal force to decisions under regulation 12 of the regulations.
29. This case concerned a "class" exemption. It was accordingly not necessary for the Tribunal to satisfy itself that any particular harm was caused before it went on to consider the balance between the competing public interests.
30. Miss White, who appears for ECGD on this appeal, submits that the Tribunal erred in its approach to its task and so produced an unsustainable decision. She points to particular paragraphs in the Tribunal's reasoning which, she submits, demonstrate an erroneous approach.
31. Miss Rose QC, for Friends of the Earth, submits that I should approach the decision as a whole and not identify individual arguable errors within the reasoning process. Her proposition is undoubtedly right, but it is nevertheless necessary to consider the claimed errors identified by Miss White paragraph by paragraph, and for me to set them out. The errors she submits are contained in the following passages:

"53. ... It is sufficient to point to the onus which clearly rests on a public authority in the context of the EIR whenever it chooses to rely on an exception, such as the present case, that onus being to specify clearly and precisely the harm or harms that would be caused were disclosure to be ordered. If no such harm can be clearly made out given the terms and effect of Regulation 12(2), the balance must fall in favour of disclosure under the test in Regulation 12(1)(b).

...

63. ... as is clearly apparent from the FoE's own witnesses' evidence, there appears to this Tribunal to be a weighty public interest inherent in the need for the public to be acquainted with such exchanges which were likely to represent far more than preliminary and unparticularised views, the critical question remaining whether disclosure of the information requested would in all the circumstances be shown to cause or be likely to cause the suggested harm.

...

70. ... The Tribunal finds that Mr Weiss [a senior official of ECGD, who gave evidence before the Tribunal] was unable to advance any evidence of any real or persuasive weight which could have led the Tribunal to determine that there existed a real, as distinct from an imagined, harm or prejudice which would necessarily result from the requested disclosure."

32. Those passages, Miss White submits, demonstrate that the Tribunal was setting a hurdle or threshold which had to be surmounted before the Tribunal could go on to assess the competing public interests.
33. Miss White identifies a further claimed error of law in paragraph 61 of the decision. In paragraph 54 to 56 the Tribunal briefly summarised arguments of high principle that had been advanced in the DFES case, based on witness statements and annexes produced by Lord Andrew Turnbull and Mr Britton, to the effect that disclosure of advice within or between departments relating to decisions which had to be taken at ministerial level would significantly inhibit the conduct of good government.
34. That evidence was given and the authors of it were cross-examined in the DFES case. The Tribunal, in paragraphs 27 to 36, set out an accurate and wholly fair summary of the points which Lord Turnbull and Mr Britton made. I commend them to any future reader of this judgment. It seems to me that, for present and future purposes, it is quite unnecessary to go beyond what the Tribunal there said.
35. In this case the Tribunal rejected the general propositions made by Lord Turnbull and Mr Britton as insufficient to justify the refusal of disclosure of the information sought. In the last sentence of paragraph 61 it stated:

"The Commissioner and the Tribunal have been charged with the responsibility of resolving on a case by case basis where the proper balance should be struck regardless of such ulterior considerations."

36. Miss White submits that the considerations are not "ulterior". On the contrary, they go to the heart of good government in practice and should be considered and weighed in the balance in every case.
37. There is in my judgment force in Miss White's analysis of the Tribunal's reasoning in the passages which I have cited. The impression given by paragraphs 53, 63 and 70 is that the Tribunal did set up a hurdle or threshold of proof of actual particular harm which forms no part of the statutory test which it should apply. If I had been satisfied that the error was central to its decision, I would have allowed the appeal and remitted the issue to be determined afresh by the Tribunal.
38. Likewise, the reference to the principled statements of Lord Turnbull and Mr Britton as "ulterior considerations" was at least unfortunate. The considerations are not ulterior: they are at the heart of the debate which these cases raise. There is a legitimate public interest in maintaining the confidentiality of advice within and between government departments on matters that will ultimately result, or are expected ultimately to result, in a ministerial decision. The weight to be given to those considerations will vary from case to case. It is no part of my task today to attempt to identify those cases in which greater weight may be given and those in which less weight may be appropriate. But I can state with confidence that the cases in which it will not be appropriate to give any weight to those considerations will, if they exist at all, be few and far between.
39. That unfortunate phrase by itself is not capable of undermining a decision otherwise made in accordance with the law. Miss Rose points out, fairly in my view, that the Tribunal did note in paragraph 29(6) of its decision the specific public interest in disclosure of the departmental responses to the ECGD request for information which was in play. First, the public interest in seeing whether the ECGD had been properly advised. Secondly, the public interest in seeing whether government departments charged with a specific statutory duty, such as DEFRA, had properly fulfilled their duty.
40. The answer to this appeal is ultimately to be found in paragraphs 75 and 76 of the Tribunal's decision, set in the context of the whole of its reasoning, including the errors which I have identified:

"75. The Tribunal wishes to stress not unnaturally that its decision in this case, and in particular its determination of the public interest test, relates specifically to the disclosure of information requested by FoE. The Tribunal is not requested, nor is it required to determine as a matter of general application, the extent to which 'internal communications' might be refused by public authorities in response to EIR requests generally, outside the confines of this case.

76. The information requested in this case consists of a number of items of correspondence to ECGD from a number of the recipients of the notification. The Tribunal takes the view, having seen this information, that disclosure of at least one of the responses is highly unlikely to cause prejudice in terms of collective responsibility or candour when it comes to applying the public interest scales. On the contrary, the Tribunal feels most strongly that disclosure of the type of information in question in that particular exchange is, if anything, likely to improve the quality of the deliberative process. A further response provided by another government department is also in the Tribunal's view not of a particular sensitive nature. As indicated above, it does no more than acknowledge concerns already known; it welcomes the work of independent consultants and requests that the department in question be kept informed. It is impossible to see how disclosure of this type of information is likely to impinge on the public interest inherent in candour between government departments and the notion of collective responsibility."

41. Those passages demonstrate that, far from treating the principal points made by Lord Turnbull and by Mr Britton and supported by Mr Weiss in his written and oral evidence, as "ulterior considerations", the Tribunal addressed them specifically. Having seen the documents, which it was fully entitled to do, it concluded that they would not be adversely affected. Its reasoning in paragraphs 75 and 76 showed that, even if it had expressed itself unfortunately or even made errors of law in the passages which I have identified, it nonetheless applied the correct test.
42. Having applied that test correctly, it is not for me, where an appeal lies only in point of law, to disturb the answer of the Tribunal.
43. I need address only two further questions. First, in paragraph 77 the Tribunal concluded that the fact that information about the Sakhalin II project was in the public domain, and extensively so, was an irrelevant factor. Its conclusion is unimpeachable if I had in mind only the narrow questions of public interest to which I have already referred; that is to say, whether ECGD had been properly advised and whether the government department giving the advice had properly fulfilled its statutory duty. But if the Tribunal is to be taken as saying that the fact that information of the kind requested is generally in the public domain is an irrelevant factor, then its views were mistaken.
44. Finally, I wish to pay tribute to Miss White, who has had to address me on behalf of ECGD in circumstances where she was at very short notice deprived of the assistance of leading counsel, who had argued the case before the Tribunal and was to have argued this appeal before me. All that I can say is that, sitting here, the arguments of the ECGD were not in any way understated as a result of her having to step into the breach at the last moment. I am grateful to her.
45. For the reasons which I have given, this appeal is dismissed.
46. MISS ROSE: My Lord, we apply for our costs, subject to detailed assessment if not agreed.
47. MR JUSTICE MITTING: Yes.
48. MISS WHITE: My Lord, I would resist that and suggest that, given the criticisms of the Tribunal's decision in this case and given the importance of those points of principle to my clients, this was a perfectly reasonable case in which to appeal, although the end result remains against me. In those circumstances, I would invite my Lord to make no order as to costs or, at the very least, to order only a proportion of the respondent's costs to be paid.
49. MR JUSTICE MITTING: Mr Coppel, you are not applying for your costs, I take it?
50. MR COPPEL: No.
51. MR JUSTICE MITTING: Miss Rose, anything you want to say in reply?
52. MISS ROSE: My Lord, costs follow the event. It was not our decision. We were correct in our submission that the decision should be upheld. The department may gain some useful guidance for the future. That is not a reason why we should not recover our costs. It should be said that we have all acted on a conditional fee in this matter.
53. MR JUSTICE MITTING: There was an application for a costs capping order, was there not?
54. MISS ROSE: That is correct.
55. MR JUSTICE MITTING: The outcome was that there was no order; is that right?
56. MISS ROSE: There was no costs capping order. There was a protective costs order by consent.
57. MR JUSTICE MITTING: So the position between the parties is that costs have been fixed at or limited at a particular figure?
58. MISS ROSE: Just one moment. (Pause)
59. My Lord, the position is that there is no costs cap. It was simply an agreement by the ECGD not to seek costs against us in the event that their appeal succeeding in the light of their wish to pursue it.
60. MR JUSTICE MITTING: Do you submit that that has any bearing on the exercise of discretion or not?
61. MISS WHITE: No.
62. MR JUSTICE MITTING: In that event, I am afraid that the usual order that the loser pays must apply. I order that the appellant pays the first respondent's costs, to be the subject of a detailed assessment if not agreed.
63. Any other matters? Miss White, I am looking at you I think.
64. MISS WHITE: My Lord, I believe I would need to go to the Court of Appeal for those matters.
65. MR JUSTICE MITTING: Would this be a second appeal? It would, would it not?
66. MISS WHITE: Yes.
67. MR JUSTICE MITTING: So there is no point in asking me.
68. I meant what I said at the conclusion of my judgment. I am grateful to you both, but in particular to you Miss White.
69. MISS WHITE: My Lord, I am grateful.