Those who think the data protection statutory regime is complex might want to consider how it compares to that under the Environmental Information Regulations 2004 (EIR).
So if you fancy spending the day reading a judgment that is (by my calculations) longer than George Orwell’s 1984, now’s your chance.
A number of personal search companies, who undertake different types of searches for use in real property sale and purchase transactions, are bringing a claim in restitution regarding the charges they’ve paid to defendant water companies for reports under the CON29DW Drainage and Water Enquiry process. Their argument is that information responsive to a CON29DW is “environmental information” (EI) within the meaning of the EIR and that the water companies in question were obliged to make EI available for free or for no more than a reasonable charge. Accordingly, the charges levied by the water companies were unlawful and/ or paid under a mistake of law and that the water companies have been unjustly enriched to the extent of those charges.
The water companies, in turn, say that information responsive to a CON29DW was not EI, and/or that the information was not ‘held’ by them at the time the relevant request was made and/or that they were otherwise entitled under the EIR to refuse its disclosure.
Mr Justice Richard Smith’s magnum opus of a judgment bears close reading (closer than I’ve yet been able to give it), but it contains some notable findings, such as: not all of the information responsive to a CON29DW is EI; not all of the information was held for the purposes of the EIR and not by all of the defendants; information responsive to a CON29DW about internal flooding to a property is personal data (there’s an interesting discussion on the definition of personal data, touching on Durant, Edem, Ittihadieh and Aven v Orbis – but I think this part of the judgment is flawed – just because information about internal flooding could be personal data doesn’t mean it always is (which is what the judge appears to hold) – what about where a residential property is unoccupied and owned by a company?)
It seems to me that the effect of the judgment is to fracture the claim into small bits – some of the info is EI, some is held, by some defendants, some is exempt, etc. – and may well have the effect of damaging the chances of the claim progressing.
The judge ends by imploring the parties to try to resolve the issue other than through the court process. So let’s see if there’s an appeal.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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