Oilseed rape, bees, lettuces and mobile phone masts: the right to information

11 April 2011 by David Hart KC

A little cluster of cases has recently been decided which bear on the nature and extent to which environmental information is accessible to the public. They involve Somerset oilseed rape, pesticide residues in Dutch lettuces, and Scottish mobile phone masts. And we visit some German apiarists to consider the implications of such information being or not being provided. So hold on to your hat.

In G.M. Freeze v. DEFRA (8 March 2011), the aptly-named appellant wanted to obtain the six-digit National Grid reference for a field in Somerset. The farmer had sown some supposedly conventional oilseed rape seed in which there was, unbeknownst to him and the seed manufacturer, some genetically-modified seed at a concentration of 5 plants per 10,000. The crop thus grown then cross-pollinated with the neighbouring field of oilseed rape, contaminating the latter to 1 part per 10,000. Oilseed rape

G.M. Freeze said that the grid reference of the farm was “environmental information” within the meaning of the Environmental Information Regulations 2004. DEFRA accepted this, but said that the information was “personal data”, and hence it could justifiably refuse to provide it.
The First-Tier Tribunal of the General Regulatory Chamber agreed with DEFRA. The decision turned on whether the giving of the data “is necessary for the purposes of legitimate interests pursued by the data controller or the third party or parties to whom the data are disclosed except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject”: reg.13 EIR read with Schedule 2 to the Data Protection Act 1998. The Tribunal agreed that G.M.Freeze had a legitimate interest in the data, but said that the giving of the data was not “necessary.”

The appellant argued that where environmental information concerned emissions likely to effect the environment (one of the sub-categories of such information), then the dissemination of the information, was by its very nature, “necessary”: it relied upon the terms of Article 4(2) of the Environmental Information Directive (2003/4/EC) in which, it was argued, information concerning emissions was given special status.
The Tribunal disagreed both with the contention that sowing GM-contaminated seed was an emission, and, even if it was, that this fact got the appellant home on showing that provision of the information was “necessary”.

The first seems right, but not the whole story, given that the field contained contaminated seed, and the crops from that field had already cross-pollinated with the neighbouring field, and G.M. Freeze’s whole concern was about its wider impact. Surely emissions in the form of GM-contaminated pollen came from the crop, not directly from the sowing of it.

However, even if the information concerned emissions, it is not clear that this avoided the problem posed by the fact that the data was apparently agreed to be personal data. This is rather clearer in the Aarhus Convention (from which the Directive was drawn), where, if data concerns emissions, one overcomes commercial and industrial confidentiality (Art.4(4)(d)) but not that of personal data (Art.4(4)(f)), and this position is reflected in regs. 12 and 13 of the EIR respectively.

The remaining issues were application of the “necessary” test, and, if applicable, the weighing of prejudice to the original farmer and others involved.

No worries(??)

When the Tribunal came to apply the “necessary” test, one begins to wonder about the process. It in effect reasoned thus:

DEFRA have convinced us that there was no measurable risk of dilution of a conventional crop within the vicinity and hence no realistic likelihood of adverse consequences from the incident; similar considerations apply to the interests of bee-keepers, given the low level of contamination; ergo it is not “necessary” that anybody else knows about where the incident occurred.

Or more bluntly, “DEFRA say there is no worry, so there is no worry”. This is a strange way of interpreting a measure about access to environmental information. The 1st recital to the Directive makes the point that “Increased public awareness 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.”  These central values laid down in the Directive seem insufficiently reflected in the Tribunal’s decision.

In any event, in applying this evidential exercise, it does seem as if all the cards are placed firmly with DEFRA. The whole point is that G.M Freeze did not know where the field was and could thus only assess at the most general level whether DEFRA’s analysis was or was not realistic. That, after all, is one interest served by access to environmental information, namely to put others in a position where they can make some realistic assessment of the robustness or otherwise of official announcements. And that applies, whatever one thinks about the GM issue, whether it be a worrying manipulation with the natural order or a lot of fuss about nothing.

Bablok and his bees

Any bee-keeper who is told by DEFRA that any GMO contamination of pollen or honey from this crop was at a low level (see above) might think that this, if correct, was the end of his troubles. Not so, according to a recent opinion of Advocate-General Bot in C-442/09 Bablok v. Freistaat Bayer (9 Fenruary 2011).  This is not an environmental information case, but it has implications for such information not being provided as contemplated by the last case.

Herr Bablok is a bee-keeper whose hives are 500 metres from some GM maize trials on land owned by the Bavarian State. He sells honey and used to sell pollen. Very low concentrations of GM DNA was found in his honey, and GM DNA and proteins were found in his pollen. He sued the State. The issue was referred to the CJEU in order to determine whether the presence of this GM material was a material interference with the use of his land caused by the State. The Advocate-General determined that even minute amounts of involuntary GM material in honey and pollen meant that Herr Bablok would have to obtain an authorisation under the GMO Directive before placing his products on the market.

If Somerset bee-keepers read Advocate-Generals’ opinions in French (or this blog), then they may now be less than reassured by DEFRA’s placatory stance in the G.M. Freeze case.  On one level, ignorance may be thought to be bliss. On another, they have no idea without the grid reference in issue whether they are 1km or 30km from the offending farm, and marketing GMO-containing food without a consent (granted by DEFRA) is, of course, an offence – albeit, it appears, one requiring some degree of knowledge.

Dutch lettuces

So now we come to the lettuces trailed above.  They arise in Case C-266/09 Stichtung Natuur en Milieu (16 December 2010). Dutch NGOs sought disclosure from a public authority responsible for pesticides of documents concerning field trials on lettuces, and in particular concerning residues and effectiveness of a pesticide known as propamocarb marketed by Bayer. These trials were relevant to the fixing of maximum residue levels (MRLs) for the pesticide in food, for the purposes of European legislation about pesticides. The public authority and Bayer said this was not environmental information under the Directive. The CJEU disagreed.  Information about the level of residues, and the MRLs set for the residues was relevant to the assessment of risk of its dispersal in soil or groundwater: para.42. The Advocate-General had been more explicit; the studies and field trial reports were information on emissions into the environment whose disclosure may not be refused on grounds of commercial or industrial confidentiality [para.101].

Joining some dots

So we are left in a curious position. An individual farmer, running his business, planting crops and running seed trials, generates – it seems – “personal data” in terms of the location of his farm (even though his farm will be openly marked on any Ordnance Survey map). All that outsiders will not know is that this farm is the one where the GM contamination was found as a result of the running of his business.  The onus is on the applicant to show that it is “necessary” for him or her to have the data, even if it concerns potential emissions. Contrast the same farmer, who runs his business through a company, and does not live in a farmhouse on the farm. The data, assuming it to be confidential, is unarguably commercial information and, if it concerns emissions (including potential contaminants, per the Advocate-General) it must be produced.

Perhaps the answer to this anomaly is that careful scrutiny in any case must be given to whether the data in question is indeed “personal” data.
Mobile phone masts and grid references (again)

Finally, we arrive at our mobile masts and their multiple exemptions. This time another Advocate-General’s opinion in March 2011, C-71/10 Office of Communications v. Information Commissioner, a reference from the UK Supreme Court. A Scots NHS epidemiologist wanted the grid references of mobile phone masts. The Information Tribunal found that two exemptions in reg.12 EIR were in play (public security and intellectual property rights) against which were stacked the public interest of the epidemiologist who evidently wanted to explore any association between their location and possible health effects.

But the issue of principle was this: should one weigh each exemption against the public interest, or should one cumulate the exemptions and weigh their combined effect against the public interest? The Information Commissioner, the Tribunal, the Administrative Court, and 2 members of the Supreme Court preferred individual balancing, whereas the Court of Appeal and a majority of the Supreme Court opted for the cumulating approach. The latter tends to make it easier to exempt information from disclosure. 50 grams of public interest outweighs 40 grams of public security, and then outweighs 40 grams of intellectual property, but it falls short if you add the latter together.

The Advocate-General preferred to cumulate the various potential exemptions; after all, as she pointed out, one cumulates the various elements of public interest on the other side of the balance as set out in the 1st recital of the Directive set out above.

So our Scots epidemiologist need only await two more decisions (five decisions in the bag) before he does or does not get the grid references – the judgment of the CJEU and the Supreme Court’s application of the CJEU’s wisdom.  All pretty swift given that he asked for the information in January 2005.