Export Credits Guarantee Department v Friends of the Earth

Under regulation 12 of the Environmental Information Regulations 2004, an internal-communications exemption is a class exemption. The public authority need not prove specific prejudice before the public-interest balance is undertaken. The decision-maker must identify the applicable exemption and then weigh, in all the circumstances, the public interest in maintaining it against disclosure, applying the presumption in favour of disclosure. Evidence of specific harm remains relevant to that balance. Confidentiality of advice within and between government departments may carry substantial weight, particularly where ministerial decision-making is involved. The assessment is fact-specific. An appeal on a point of law will not permit the court to reweigh the tribunal’s conclusion.

Friends of the Earth requested departmental correspondence concerning the proposed Sakhalin II oil and gas project under regulation 5(1) of the Environmental Information Regulations 2004. The Export Credits Guarantee Department withheld three departmental responses under regulation 12(4)(e), relying on the internal-communications exception. The Information Commissioner upheld that decision, but the Information Tribunal allowed Friends of the Earth’s appeal and ordered disclosure.

The Department appealed to the Administrative Court on alleged errors in the Tribunal’s approach to the exemption, the public-interest balance and the significance of confidentiality in interdepartmental advice. The central issue was whether the Tribunal had applied the statutory test correctly and, if so, whether its conclusion could be disturbed on an appeal limited to a point of law.

1. The appeal was dismissed. The Information Tribunal had applied the correct statutory test when its decision was read as a whole, notwithstanding errors or unfortunate expressions in parts of its reasoning.

2. Regulation 12 distinguishes between class exemptions under regulation 12(4) and prejudice-based exemptions under regulation 12(5). For a regulation 12(4) class exemption, it is unnecessary to establish prejudice to a particular interest before undertaking the public-interest balance. Prejudice or harm caused by disclosure may nevertheless be relevant to that balance.

3. The decision-maker must first determine whether the information falls within a potentially exempt class. It must then decide, in all the circumstances, whether the public interest in maintaining the exception outweighs the public interest in disclosure. Regulation 12(2) creates a presumption in favour of disclosure and supplies the default where the interests are evenly balanced. The assessment is fact-specific.

4. The Tribunal had wrongly suggested in parts of its reasoning that an authority had to demonstrate actual and particular harm before the balance could be undertaken. It had also described wider governmental considerations as ulterior. Those observations were legally mistaken or unfortunate. There is a legitimate public interest in preserving confidentiality and candour in advice within and between departments concerning matters expected to result in ministerial decisions. The weight of that interest varies with the circumstances, and cases in which it attracts no weight will be rare.

5. Read in context, the Tribunal had considered those interests and had examined the documents itself. It concluded that disclosure of the particular responses was unlikely to prejudice collective responsibility or candour and might improve the deliberative process. That conclusion could not be disturbed on an appeal confined to a point of law.

6. The fact that information of the relevant kind was already in the public domain was not irrelevant in the general public-interest assessment, although it might have little significance when considering only whether the Department had been properly advised or whether a statutory duty had been fulfilled. The appellant was ordered to pay the first respondent’s costs, subject to detailed assessment if not agreed.

• Information Tribunal: appeal allowed on 20 August 2007; disclosure of the requested information ordered.
• High Court (Administrative Court): appeal on a point of law dismissed; the Tribunal’s decision upheld.