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When will the right to public access to information on the environment override business’s right to protect their data? Simon Tilling of Burges Salmon says there is a balance to be struck, and environmental lawyers must be aware of information rights to get the best results for clients.
There is no doubt that improved access to information about the environment in which we live has significant benefits. It improves public awareness and participation in public decisions and gives the public the opportunity to take part in important debates. These rights have been enshrined in the Aarhus Convention to which the UK and the EU are both signatories.
However, the rights are not absolute, and there is a balance to be struck when information about the environment is also commercially confidential, or contains intellectual property, or is of a particularly sensitive nature. That balancing act is the subject of much debate and environmental lawyers need to be aware of information rights in order to get the best results for their clients.
The Aarhus Convention and the corresponding European Directive 2003/4/EC are transposed to English law through the Environmental Information Regulations 2004, SI 2004/3391 (EIR), which governs all ‘environmental information’. The scope of ‘environmental information’ is surprisingly wide.
Note that the Freedom of Information Act 2000, which came into force on the same day, governs all information which is not ‘environmental information’.
The balancing of these competing interests is at the heart of the EIR regime. The task is to weigh up the public interest from the release of the information against the public interest in not releasing the information. Protecting private interests alone is not a factor unless there is a public benefit in doing so. We then get into difficult judgement calls about how much the protection of private law rights such as intellectual property is in the public interest.
Of course, it is not the court that makes the assessment in the first instance, but the public body that holds the information, and there is a long review and appeal process before it reaches a court. Applicants who are dissatisfied with a public body’s decision must first ask the public body to review the decision. It then goes to the Information Commissioner for a decision, and then to the First-tier Tribunal (Information Rights), which is the final arbiter of fact. Appeals can then be heard by the Upper Tribunal (Administrative Appeal Chamber) before moving to the Court of Appeal and ultimately the Supreme Court.
This is not a quick process—the leading case of Ofcom v The Information Commissioner  EWCA Civ 90, All ER (D) 212 (Feb) took eight years from the information request to final resolution (although that case also took a trip to the CJEU).
One significant grey area used to be whether you can combine factors against disclosure and weigh them together against the public benefit in release. In Ofcom, the CJEU clarified it was permissible to do so. However, there is still a question over how this is done in practice. When Ofcom was returned to the First Instance Tribunal (Information Rights) to make a determination, the tribunal clearly found the concept of combining the protection of different interests (such as public security and protection of intellectual property) difficult to do, concluding that the analysis is not numerical and is rather more ‘impressionistic’.
Another interesting area is the protection of commercially confidential information. There has been some debate in recent cases about whether confidential information only covers information protected by the narrow English common law concept of a duty of confidence, or whether it is wider. A good example of this was the recent case of Roy Jones (on behalf of Swansea Friends of the Earth) v Information Commissioner, Environment Agency and S I Green (UK) Ltd , where there was a debate about whether a financial bond negotiated between the Environment Agency Wales (now Natural Resources Wales) and a landfill operator was protected by the confidentiality exception. Again, we are seeing the influence of European law in recent judgments, and the case of Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council  EWHC 2382,  All ER (D) 78 (Oct) even goes as far as concluding that confidential information is a property interest protected by the European Convention on Human Rights.
Modern environmental lawyers need to also be information rights lawyers if they are to get the best results for their clients. Whenever there is a release of information to an environmental regulator, clients need to consider whether that information will automatically become public (for example, on an Environment Agency register) or whether it would be released to a third party on request. There are ways to protect documents from release. Because we have a number of clients who come across this issue on a regular basis, we have produced a standard product providing clients with precedent letters and guidance sheets to help them manage their own interactions with the regulators.
There are also benefits, of course, and the EIR provides clients with access to a wealth of information that would otherwise not be accessible. This is of great value, whether as a source of evidence in litigation, or a source of information for commercial dealings. We are often making EIR requests for and on behalf of our clients.
The latest version of the EIR is not yet ten years old (although strictly speaking the EIR has a predecessor, it is a completely different beast to its toothless ancestor) and it is still bedding in. This means that there are numerous issues yet to be tested and boundaries still to be pushed. The full scope of what constitutes ‘environmental information’ is still being explored, as is the operation of the public interest balancing test. Most EIR requests are addressed by public bodies without much note, but every now and again the issue becomes very important to one or more of the parties and the Information Commissioner and the tribunal system are forced to grapple with difficult competing issues. Environmental lawyers that can deal with such disputes will be in high demand. Businesses need to be aware of the risks—and opportunities—that this area of law provides.
Simon is speaking at the Sixth Northumbria Information Rights Conference in London on 13 June 2014
Interviewed by Nicola Laver.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This article was first published on Lexis®PSL Environment on 12 May 2014.
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