Information law: when something is “on” an environmental measure

30 June 2017 by David Hart KC

Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney [2017] EWCA Civ 844 , 29 June 2017 – read judgment

As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.

The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.

Smart Meters, as my pic suggests, give near real-time information to users about energy use, enabling comparisons between energy sources and communication of data between the meters and suppliers and network operators. The programme derives from an EU Directive requiring at least 80% of consumers to have such meters by 2020, in cases where their introduction is supported by a cost-benefit analysis.

Mr Henney is a long-term energy expert, and he asked DECC (BEIS’s predecessor) for sight of a Project Assessment Review (PAR) about the communications and data component carried on behalf of DECC. The request was made as long ago as 9 November 2012.

Quickly it became mired in the current dispute – was the information sought “environmental information” within the EIRs?

Before we do likewise, why does it matter? Because the EIRs carry a presumption in favour of  disclosure and FOIA does not, and almost all of the EIRs’ exceptions involved a balancing test involving the public interest, whereas a number of FOIA’s exemptions are absolute.

The complex reg. 2(1) of the EIRs can be simplified for current purposes. “Environmental information” includes any information “on” “measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements and activities affecting or likely to affect the state of the elements of the environment, and factors, such as energy, emissions, discharges and other releases affecting or likely to affect the environment.

So the issue became – was the communications and data component of the Smart Meter Review “on” a relevant measure likely to affect the environment?

It was agreed that the Smart Meter programme was “on” a relevant environmental factor, i.e. energy. But how widely do you look? The Upper Tribunal below said you had to look at “the bigger picture” in order to identify the measure which the information was “on”.

BEIS said that this was wrong;  the UT had allowed the context of the information to become the subject of the information. The PAR looked at the data and comms network, and that network would not have any effect on the environment.

The Information Commissioner and Mr Henney disagreed. The PAR, though about data and comm for the Smart Meter Programme, could contain information “on” or “about” that Programme.

The CA agreed with them. The data and comms information was “on” the Programme because it was integral to the success of that Programme as a whole.

The law

The judgment sets out a very helpful background to the legislation. Key to the “broad” way in which the EIRs are to be construed is their derivation, initially out of the 2003 Directive on Public Access to Information, which itself came out of the 1998 Aarhus Convention (me passim).

But “broadness” only goes thus far. In Glawischnig v Bundesminister für Sicherieit und Generationen, (13 June 2003), the ECJ said the Directive was not intended

to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned … . To be covered by the right of access it establishes, such information must fall within one or more of the … categories set out in that provision.

The CA also set out another difference in approach between FOIA and the EIRs.  “Information” in s.1(1) of FOIA  focuses on the information itself: see Independent Parliamentary Standards Authority v Information Commissioner [2015] EWCA Civ 388 at [35] – [36]. The EIR definition focuses on the relevant measure rather than solely on the nature of the information itself.. Information is “on” a measure if it is about, relates to or concerns the measure in question. Accordingly, the UT was correct first to identify the measure that the disputed information is “on”.

The CA’s answer

The CA thought that the UT’s reference to the “bigger picture” was capable of distracting the decision-maker from the real question (which was about whether something was “on” something else) towards an approach which was about whether something “related to” or “had a connection with” an environmental factor, however minimal.

But that is not to say the focus should be too narrow. The CA rejected the contention that the information in question need be directly or immediately concerned with a measure which is likely to affect the environment.

Turning to the data and comms element, this was not merely some incidental part of the Smart Meter Programme, it was critical to its success and fundamental to it.

In an important passage reminding us of one of the purposes of providing environmental information, the CA stated:

the application of the definition….is informed by the purpose of the Aarhus Convention and the Directive. In the present case, since the objectives of the Project Assessment Review include assessing the progress of the communications and data component, it is clear the public may be better informed and better able to contribute to environmental decision-making if they are able to have access to the Project Assessment Review. The evidence before the FtT made clear that the Project Assessment Review considered a choice between two models. Those with experience of the electricity industry such as Mr Henney may be well placed to comment on the conclusion as to which model is most appropriate, or most likely to achieve the Smart Meter Programme’s environmental objectives.

Conclusion

An interesting and thoughtful judgment on a less than straightforward definition of environmental information.

It is a great pity that it has taken well over 4 years to get to a stage when a court has determined under what regime the request is to be adjudged. Mr Henney was provided with a heavily-redacted copy of the PAR years ago; the redactions were said to be to avoid the inhibition of a free and frank exchange of views or the prejudicing of the conduct of public affairs. We, and presumably he, still have no idea of what this is really all about. On the face of it, a highly technological and expensive system of complying with an important EU energy measure might be thought to be something on which all comers’ contributions were welcome. But we do not know whether things have moved on to such a degree that Mr Henney and others have already lost their moment to influence things.

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