Birkett v The Department for the Environment, Food and Rural Affairs

A public authority may rely as of right on a new exception to disclosure of environmental information during proceedings before the Information Commissioner or the First-tier Tribunal. The mandatory duty to give timely reasons for an initial refusal does not make an omitted exception incapable of later correction.

The review required by article 6 of Council Directive 2003/4/EC is broad and requires the propriety of disclosure to be considered afresh. It must balance prompt access to environmental information against the important interests protected by the exceptions. Before the Tribunal, new grounds must be identified within the procedural time limits. A later attempt to introduce them is governed by the Tribunal’s statutory case-management powers, rather than a separate non-statutory discretion.

The appellant requested environmental information from the Department concerning discussions about air pollution and compliance with EU air-quality law. The Department refused disclosure under regulation 12(4)(e) of the Environmental Information Regulations 2004. On appealing the Information Commissioner’s disclosure decision, it additionally relied on regulations 12(5)(b) and 12(5)(d).

The First-tier Tribunal declined to consider the new exceptions because the Department had not provided a reasonable justification for overlooking them. The Upper Tribunal allowed the Department’s appeal and held that it could rely on the exceptions as of right: [2011] UKUT 39 (AAC).

The central issue was whether the purpose and requirements of Council Directive 2003/4/EC prevented a public authority from introducing an exception not stated in its original refusal.

1. Appeal dismissed. The Department was entitled as of right to rely on the additional exceptions identified in its notice of appeal to the First-tier Tribunal. Lloyd LJ agreed with Sullivan LJ. Carnwath LJ also agreed that the appeal should be dismissed on the arguments presented.

2. The requirement to notify a refusal and state its reasons, including the exceptions relied upon, within the prescribed period is mandatory. A failure to comply is unlawful. Commission v France and Housieaux established that principle, but neither decision determined the consequence of the unlawfulness or required omitted exceptions to be excluded from a later review.

3. A purposive interpretation of Council Directive 2003/4/EC required consideration of the scheme as a whole. The need for prompt disclosure had to be considered alongside the breadth of the article 6 review and the need to protect the important public interests underlying the exceptions. The Directive did not assume that an authority would invariably identify every applicable exception within the short initial period.

4. The article 6 process permits factual and legal reconsideration of the merits. A body conducting the legal review under article 6(2) reviews the acts or omissions of the public authority, rather than merely reviewing the administrative reviewer’s decision. It must therefore consider afresh whether releasing the information is proper. Errors or omissions concerning applicable exceptions may be corrected during that process.

5. Allowing a new exception does not deprive the requester of effective protection. Administrative review must be expeditious, and the Commissioner may regulate the proceedings. Under the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, an authority must identify its grounds in its notice of appeal or response within the specified time. Any later attempt to introduce a ground is controlled by the Tribunal’s statutory case-management and extension-of-time powers.

6. The statutory procedural scheme left neither a need nor scope for the non-statutory discretion exercised by the First-tier Tribunal. A reference to the Court of Justice of the European Union was unnecessary. Carnwath LJ noted the attractions of a possible middle course, but considered that the court could not devise one without supporting submissions.

1. Court of Appeal (Civil Division): Dismissed the requester’s appeal and affirmed that the Department could rely as of right on the new exceptions identified in its First-tier Tribunal notice of appeal: [2011] EWCA Civ 1606.

2. Upper Tribunal (Administrative Appeals Chamber): Allowed the Department’s appeal and held that it was entitled as of right to rely on the new exceptions: [2011] UKUT 39 (AAC).

3. First-tier Tribunal (General Regulatory Chamber): Held that an exception first raised before it required reasonable justification. It withheld permission to rely on regulations 12(5)(b) and 12(5)(d) of the Environmental Information Regulations 2004.