Tag Archives: EIR

June 6, 2025 · 8:44 am

Hinkley Point C construction company is a public authority under the EIR

The Information Tribunal has ruled that the Nuclear New Build Generation Company, a subsidiary of EDF Energy, created to construct s new nuclear power plant at Hinkley Point C (HPC), is a public authority for the purposes of the Environmental Information Regulations 2004 (EIR)

In the last fifteen years or so, a very interesting body of case law has been built up regarding the extent to which certain private persons have accrued, or have been conferred upon them, the status of a public authority for the purposes of the EIR. Some of the bodies who have been held to be public authorities (at least in a limited EIR sense) are water companies, BT, public gas transporters, and port authorities. Some which have not been held to be include Heathrow Airport and housing associations.

The EIR create a scheme for public access to environmental information held by public authorities, which runs in parallel to the scheme under the Freedom of Information Act 2000 (FOIA). Where FOIA, though, specifically designates public authorities, the EIR (which implemented an EU Directive, emanating in turn from the 1998 UNECE Aarhus Convention) define a public authority by virtue of its actions and powers.

Whether a person is a public authority will often turn on whether it “carries out functions of public administration”. The tests for this derive from the “Fish Legal ” in the CJEU: whether they are “entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and…are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”

In NNB Generation Company (HPC) Ltd v Information Commissioner & Anor [2025] UKFTT 634 (GRC), the Tribunal, considering an appeal by HPC from a decision by the Information Commissioner’s Office that it was an EIR public authority (and in which Fish Legal were again the applicant), held that the relevant Development Consent Order, and the electricity and nuclear licences granted to HPC constituted entrustment with the performance of public services in relation to the environment, and the powers accruing from that entrustment “go far beyond what a private person without the benefit of such powers would be able to do in those circumstances, for example in empowering HPC to make byelaws, even if it opts not to do so”.

Decisions of this sort are nuanced and complex, and for that reason, often amenable to appeal. I would not be surprised if this one goes to the Upper Tribunal.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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February 5, 2025 · 8:04 am

Is information held by external solicitors “held” for the purposes of FOIA?

[reposted from my LinkedIn account]

Where an external solicitor’s firm holds information in relation to advice given by the solicitor on instructions by a public authority client, is the information held by the solicitor “on behalf of” the public authority, for the purposes of section 3(2)(b) of the Freedom of Information Act 2000?

While the matter is live, the answer is probably “yes”, but what if the public authority client has long since destroyed its own records, but the solicitor’s firm has retained its records for its own regulatory or risk purposes? Here, the answer is probably “no”.

And that is the situation which came before the Information Tribunal recently. The requester was seeking information from Sheffield City Council about a development scheme from 2007/2008. The Council had said that it would have destroyed its own records, and said that to determine whether the information was held would necessitate the inspection of 28 box files held by law firm Herbert Smith Freehills, who had been instructed by the Council at the relevant time. To even determine whether the information was held or not would exceed the costs limits in section 12 of FOIA. The ICO, in the decision notice being appealed, had agreed.

As I was reading the first few paragraphs of the Tribunal judgment, I said to myself “hang on – is this info being held by HSF on behalf of the Council, or is it being held for HSF’s purposes?” I was limbering up my fingers to write a post criticising everyone for not spotting this, so I was then pleased to see that the Tribunal, of its own volition, identified it as an issue and sought submissions from the ICO and the Council on it.

After some back and fro (it is not entirely clear from the judgment who said what in their submissions, and there was a side issue as to whether in fact the Environmental Information Regulations applied) the evidence was pretty clear that the Council had had no intention to retain the information, nor to entrust it to HSF. Accordingly, the information was not “held” for the purposes of FOIA.

I’m not sure I understand why the Tribunal did not substitute a different decision notice to reflect this (it simply dismissed the requester’s appeal), but ultimately nothing really turns on that.

What one can take from this is that solicitors and their clients (especially public authority clients) should, jointly and separately, make clear in agreements and policies what the status is of information retained by solicitors after an instruction has ceased, and how requests for such information should be dealt with.

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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January 28, 2025 · 6:20 am

Closed MI5 material in the Information Tribunal

You don’t know what you don’t know.

A recent judgment in the Information Tribunal is a good example of this platitude in the context of access to information held by public authorities.

The applicant had asked MI5, under the Environmental Information Regulations 2004 (EIR) for information on its CO2 emissions (by reference to the Greenhouse Gas Protocol). MI5 refuse to disclose in reliance on the exception to disclosure at regulation 12(5)(a), on the grounds that disclosure would adversely affect national security. This refusal was upheld by the Information Commissioner’s Office.

Perhaps unsurprisingly, the applicant was sceptical. The judgment notes that

she said that MI5 had not demonstrated a causal link between the disclosure of the information and the claimed adverse effect of that disclosure; MI5 had not provided any evidence that the adverse effect of disclosure was more likely than not to occur. She described the position of MI5 to be based on assumptions and that they had overlooked the difficulty of inferring accurate information from emissions data

The Information Tribunal can, though, consider closed material in EIR and FOI processing (ie information and evidence which the applicant cannot see/hear). And in this case, MI5 adduced closed evidence, in the form of “damage assessments” which

included submissions as to how the emissions data could be used and the nature of the conclusions that could be drawn from those data, whether analysing the data alone, by also using data in the public domain or by using comparators” and “identified stark and very accurate conclusions that could be drawn from the raw data itself with simple calculations

In the face of such evidence, the Tribunal inevitably dismissed the applicant’s appeal.

The judgment is well worth reading as an illustration of how the closed material procedure works.

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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September 2, 2024 · 3:49 pm

Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021)

I wrote recently about the fact that a judgment in the Upper Tribunal, which the Information Commissioner cites in guidance, was not publicly available anywhere. The ICO had refused to disclose it in response to a Freedom of Information Act request and suggested the requester ask for a copy directly from the Tribunal.

I don’t know if the requester did, but I thought it would be helpful to do so, and upload it here. (Kudos to the Tribunal for the swift, helpful reply.)

I’m also going to contact Bailii, and see if they might host a copy as well.

GIA-85-2021.pdfDownload

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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August 26, 2024 · 8:00 am

Closed justice and the EIR

[reposted from LinkedIn]

The Upper Tribunal is an appellate court: its judgments create precedent, under the doctrine of stare decisis. For that reason, one might think that all of its judgments would be published – particularly ones that are cited by a regulator in its guidance. But that’s not the case.

The Information Commissioner’s Office (ICO) refers to an Upper Tribunal judgment – Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021) – in its guidance on the Environmental Information Regulations, but the judgment has never been openly published online (it’s possible one of the various paid-for online legal libraries has it – I haven’t checked).

The lack of easy access to judgments and other court documents in general (not just those in the Upper Tribunal) is one that has understandably exercised people for a number of years. Things have got much better in recent years, and the work of BAILII (British and Irish Legal Information Institute) and of people like Lucy Reed KC, Judith Townend and Paul Magrath at The Transparency Project has been key in advancing this core constituent of the principle of open justice. But there are still huge amounts of case law which are not readily available to the public.

For this reason I was struck by the ICO’s response to an FOI request for a copy of the judgment that they rely on to justify their own approach to the law. They point out to the requester that the only copy of the judgment they hold is a signed one from the court, and that it was “not intended for publication or wider disclosure”. They refuse to disclose it in reliance on the absolute exemption at section 32 of the Freedom of Information Act 2000 (FOIA) for information created by a court. What they don’t consider is – despite there being an exemption engaged – whether to exercise their discretion not to rely on it. In the circumstances, this would seem an obvious thing to do.

In fact, as the judgment is about the Environmental Information Regulations 2004, and it is used by the ICO to support its guidance on those regulations, it seems clear that the ICO should have dealt with the request also under the regulations. As they do not have an equivalent exemption to section 32 of FOIA, I cannot see the grounds for non-disclosure.

Instead, they suggest the requester asks for a copy from the Tribunal directly. Much better, and public-spirited, I would have thought – if they felt they shouldn’t or couldn’t directly disclose – would have been for the ICO to seek the permission of the Tribunal to disclose (or even better, to nudge the Tribunal to get it uploaded at https://www.gov.uk/administrative-appeals-tribunal-decisions).

The upshot of all this is that – regardless of whether the original requester does so – I’m going to contact the Upper Tribunal to ask for a copy, and when I get it, I’ll upload it to my personal blog. But I’m not convinced that’s really how open justice should operate.

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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August 25, 2024 · 9:36 am

Countless erroneous FOI decision notices

[reposted from LinkedIn]

Under section 50 of the Freedom of Information Act 2000 (FOIA), the Information Commissioner must – subject to exceptions applying – serve a decision notice on a “public authority” when a requester applies for such a notice to be made. Public authorities are, in the main, listed in Schedule One to the Act (some are also designated by statutory instrument, or are public authorities by virtue of being owned by one or more other public authorities).

Under section 58 of FOIA, upon appeal to the Information Tribunal, the Tribunal must uphold the appeal, or substitute a replacement, if it considers that the decision notice is “not in accordance with the law”.

I’d like to ask this – if the decision notice gets the name of the public authority wrong, is it “not in accordance with the law”?

Because that is what appears to be the case with countless decision notices served on educational institutions.

Someone recently made an FOI request to ask why the Commissioner had changed his terminology, because some decision notices are addressed to, say, the “University of Exeter”, while others are addressed to the “Governing Body of the University of Exeter”. The answer given by the Information Commissioner’s Office is that was not a change of approach, but, rather, that the examples of the former were “due to an error”.

This in itself is pretty extraordinary, but it doesn’t look like it’s just a historic error which has now been corrected, because if one looks, for example, at the decision notices served this year on UCL, four have (presumably correctly) been served on the Council of the University of London, and three have (presumably incorrectly) been served on “University College London”. [UPDATE: Tony Mann, in the comments, draws my attention to what seems to be an error in the “correct” notices – the “Council of the University of London” is a different body to the “Council of University College London”.]

One has to ask two things: 1) are those three notices not in accordance with the law? 2) if the ICO knows that it is an error to serve a notice not using the correct terminology, why on earth is it still doing so?

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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August 25, 2024 · 8:47 am

Manifestly EIR

[reposted from LinkedIn]

I’m dumbfounded how a public authority, all of the staff at the Information Commissioner’s Office – including its litigation lawyers – and the three people hearing the appeal in the Information Tribunal, failed to identify that this request clearly should have been handled under the Environmental Information Regulations 2004 and not the Freedom of Information Act 2000 – it’s about land use, a boundary dispute and planning. The ICO decision notice even states that “it relates to the status of the Council’s land adjacent to the complainant’s property”.

It may be that, on analysis, the request – which was refused on the grounds that it was vexatious – a decision with which both the ICO and Tribunal agreed – would have been considered manifestly unreasonable under the EIR, but that is no excuse. The refusal was wrong as a matter of law, the ICO decision notice is wrong as a matter of law, and the Tribunal judgment is wrong as a matter of law.

I have raised this issue before of public authorities, ICO and the Tribunal failing to deal with requests under the correct regime. I’m now minded to raise the issue formally with, at least, the ICO.

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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June 29, 2024 · 10:16 am

An EIR judgment as long as a novel

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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June 1, 2024 · 10:43 am

EIR and sewage discharges: a shift in the ICO’s position

It’s interesting (and encouraging) to see that, in a notable shift of position, the Information Commissioner’s Office (ICO) is now ordering water companies to disclose data relating to allegedly unlawful discharges of dry spillage sewage.

Previously, the ICO had tended to agree with the companies’ arguments that disclosure would adversely affect investigations by Ofwat and the Environment Agency, and the information was, therefore, exempt from disclosure under regulation 12(5)(b) of the Environmental Information Regulations 2004 (EIR). Those arguments were rather forcefully undermined by a statement to the Public Accounts Committee by the CEO of Ofwat last November that

We do not think that the investigation itself is a good reason for companies not to provide data. They have some legal obligations to disclose information, and there is a process for working that through. That process does not involve Ofwat directly, but we would encourage companies to be open and transparent about their environmental performance.

Additionally, the ICO has taken note of the judgment of the Information Tribunal in the recent Lavelle case.

This Decision Notice neatly summarises the issues and the ICO’s new position.

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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April 27, 2024 · 6:41 am

Douglas Adams and the EIR

[I tend to do a lot my posting these days on LinkedIn, and less here. But the combination of LinkedIn’s poor search capability and my memory means I forget about some things I’ve written about that I’d quite like to remember. So I’m going to put some of them on this blog to remind me. This one is on a doozy of a Tribunal judgment.]

This Information Tribunal judgment about whether photographs of planning notices should be disclosed begins with a long quote from The Hitchhiker’s Guide to the Galaxy, and gets even more extraordinary as it goes on.

By the end of the judgment the judge has called the Information Commissioner’s Office’s decision a “pitiful failure to understand the scope and significance of material in the public domain and the role of data protection in protecting rights”, uses the term “bankruptcy” to describe the approach to the matter by both the ICO and Shropshire Council, and appears to have declared the Council’s handling of not just the individual planning application, but its planning policy as a whole unlawful (the judgment says, for instance that the council’s implementation of The Town and Country Planning (Development Management Procedure) (England) Order 2015 “failed to accord local residents their rights”).

This last point surely illustrates the Tribunal straying well beyond its jurisdiction, and it is difficult to see how it will escape having its judgment appealed. That’s actually a pity, because the underlying point in it is that the ICO’s approach failed to understand that data protection law has to be considered “in relation to its function in society and be balanced against other fundamental rights” (recital 4 GDPR) and failed to consider the Environmental Information Regulations’ context, whereby access to environmental information is one of the three pillars of the Aarhus Convention – the others being public participation in decision-making, and access to justice in environmental matters.

And even if the judgment gets appealed, I would hope the ICO acknowledges the key point that data protection rights don’t automatically trump all other rights.

https://www.bailii.org/uk/cases/UKFTT/GRC/2024/330.html

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