A quick post on what I think is a rather remarkable Information Tribunal ruling.
The First-tier Tribunal (Information Rights) (“FTT”) has recently handed down a judgment on a case relating to a request for information sent to the Driver and Vehicle Standards Agency (DVSA) about a safety evaluation of an apparent throttle malfunction in the Porsche Cayman. The request was refused by DVSA on the grounds that section 44 of the Freedom of Information Act 2000 (FOIA) provided an absolute exemption to disclosure, by way of existing restrictions on disclosure of this kind of information within the Enterprise Act 2002. Upon appeal, the Information Commissioner’s Office (ICO) upheld this refusal (pointing out that in fact the correct public authority was not the DVSA, but rather the Department of Transport, of which DVSA is an executive agency).
However, when the request exercised his right of appeal to the FTT, he introduced an argument that in fact the proper regime under which his request should have been considered was the Environmental Information Regulations 2004 (EIR) rather than FOIA, on the grounds that his request concerned an activity that directly affected the environment, namely an activity to regulate vehicle noise emissions. The ICO resisted this, on the basis that
the disputed information concerned a safety test of a certain vehicle “which is not an activity which affects, or is likely to affect, the elements and factors described in Regulation 2(1)(a) or (b) EIR”
This in itself was an interesting argument, touching on issues regarding the Glawischnig remoteness test. This refers to the judgment of the Court of Justice of the European Union in the 2003 case C-316/01 (Eva Glawischnig and Bundesminister für soziale Sicherheit und Generationen) which, observing that Article 2(a) of Directive 90/313 (to which the EIR give UK domestic effect)
classifies information relating to the environment within the meaning of that directive in three categories: information on the state of water, air, soil, fauna, flora, land and natural sites (the first category), information on activities or measures affecting or likely to affect those environmental factors (the second category), and information on activities or measures designed to protect those factors (the third category)
said that
Directive 90/313 is 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 in Article 2(a). To be covered by the right of access it establishes, such information must fall within one or more of the three categories set out in that provision. [Emphasis added]
However, the FTT in the instant case decided, contrary to the positions of all the parties that “the safety test in this case is not an activity, which can be said to affect the elements of the environment” (the appellant was arguing essentially that “his request concerned an activity that directly affected the environment, namely an activity to regulate vehicle noise emissions”), the EIR were engaged merely because the safety test first required a car to be started, which by extension meant that started engine would produce emissions:
in order to test the issue complained of (i.e. the vehicle throttle response under specific conditions) the vehicle must be driven, or at the very least the engine must be running.
Consequently, by conducting the safety test:
– the DVSA caused emissions by driving the vehicle (r.2(1)(b));
– at the very least those emissions affected the air (r.2(1)(a));
– they did so through a measure (a safety test) which was likely to affect the elements (air) (r.2(1)(c));
But following this argument, the EIR would tend give the public, pace the ruling of the CJEU in Glawischnig, “a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with [the environment]”? Information, say, held by the DVLA on the number of people who passed their driving test first time would be environmental because by running the driving test the DVLA caused emissions by requiring the tester to drive the car, at the very least those emissions affected the air and they did so through a measure (a driving test) which was likely to affect the elements (air). Or consider DEFRA conducting TB tests on cattle – in order to conduct the test the inspector must travel to a farm, and by doing so DEFRA cause emissions by causing a vehicle to be driven (or a train ride to be taken etc). At the very least those emissions affect the air, and they do so through a measure which is likely to affect the elements (air). Or this: in order to deliver mail, the Royal Mail must drive vehicles which cause emissions. At the very least those emissions affect the air, and they do so through a measure (their policy to use motor vehicles to deliver the mail) which is likely to affect the elements.
What next? Is information on the statement about the benefits of dietary fibre in the human diet environmental information, because by giving it the Department of Health caused more farts (emissions) which affect the air through a measure (the statement) which was likely to affect the (elements) air?
Maybe I’m being silly, but I don’t think I am. Rather, I think the FTT are, and I wonder if the judgment will be appealed.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with..
informationrightsandwrongs 
Notwithstanding the question of whether this is an EIR or an FOI request (I think EIR, but that’s by the by), the decision also contains an important lesson for those seeking to refuse to provide information. Both Porsche and more importantly, DFT consistently misunderstood the effects of the Enterprise Act in this case, insisting that a prohibition on disclosure existed when in fact that only applied to information Porsche had supplied to DFT, and not to data that DFT generated itself through testing.
More importantly, especially in the light of the ongoing debate about ‘safe spaces’, the Tribunal gave short shrift to the idea mooted by DFT that their staff would be reticent about recording comments in safety investigations, and to Porsche’s assertions that manufacturers might be less willing to cooperate with the authorities in safety-related investigations if confidentiality is not assured. Once again, the Tribunal shows a real grasp of the public interest that seems to be oddly lacking in big government departments and big business.
As I say, I think there was an interesting point about whether this should have been dealt with under EIR (on balance, I think not, but I’d need to look at it more closely). I just think the way the FFT arrived at the position that it should is bizarre.
Leeds Council once said that my request for information about communications sent between their staff about intended library closures was environmental information,
Request: “Please supply all emails by or to council officer Catherine
Blanchard that relate to the current proposed Leeds Library
Services changes and cuts.”
“Your request has been considered under the Environmental Information Regulations 2004 as the information you have requested can reasonably be said to be about ‘measures’ which are likely to affect one of the specified elements of the environment. Regulation 2(1)(f) states that the regulations are applicable to ‘built structures’ (in this case, libraries) in as much as they are affected by any matters referred to in Regulation 2(1)(c) including administrative measures, policies and plans. I am also advised that both the domestic and European courts give wide meaning to the Regulations and have indicated that they will adopt a broad construction of the definition of environmental information.”
They then used Reg 12(4)(e) to exempt the information, because it ‘involves the disclosure of internal communications’.
Sir Humphrey would have been proud of that one!
One of the emails they were trying to hide was leaked to the local paper:
‘In it, council officer Catherine Blanchard describes Scholes
residents as “silly sods” and dismisses them as the “bloody eagled
eyed public”. (sic)
‘Referring to a key local library-cut opponent, the officer states
that she hoped that the test “winds our friend up”.
‘Ms Blanchard then laughs off library campaigners’ fears by saying
“goody” to the prospect of them being frustrated at seeing council
chiefs carrying out tests into future mobile library provision.
‘She goes on to say that the council should have used dustbin
lorries in an effort to deflect attention from their activities.’
I suspect that’s the real reason it was declared to be environmental information. Lol.
https://www.whatdotheyknow.com/request/rationalisation_of_library_servi
There was a time when, perhaps encouraged by a particularly expansive construction by ICO, this sort of thing happened a lot. It’s exactly what the remoteness test is meant to address – too broad a reading and *everything* becomes environmental.