The Department for Business, Energy And Industrial Strategy v The Information Commissioner & Anor

Information is environmental information under regulation 2(1)(c) of the Environmental Information Regulations 2004 if it is about, relates to or concerns a measure with the required environmental effect. The information need not be intrinsically environmental or primarily, directly or immediately about that measure.

The measure must be identified purposively and in context. Information may concern several measures, including both a component and a wider programme. Relevant considerations include the information’s purpose, importance and intended use, and whether access would advance informed public participation in environmental decision-making. A minimal connection is insufficient. Nor does every item of information about an environmentally significant project qualify.

The Department withheld parts of a Project Assessment Review concerning the communications and data component of the Government’s Smart Meter Programme. Mr Henney contended that the requested material was environmental information governed by the Environmental Information Regulations 2004, rather than the Freedom of Information Act 2000.

The First-tier Tribunal accepted that contention. The Upper Tribunal set aside the First-tier Tribunal’s decision for legal error but remade it to the same effect: [2015] UKUT 671 (AAC). The Department appealed.

The central issue was whether information focused upon one component of a programme could also be information “on” the wider programme for regulation 2(1)(c), where the wider programme was admittedly likely to affect environmental elements and factors.

1. Appeal dismissed. The Upper Tribunal had committed no error of law in holding that the Project Assessment Review was environmental information within regulation 2(1)(c) of the Environmental Information Regulations 2004. Beatson LJ gave the judgment, with which David Richards and Irwin LJJ agreed.

2. It is first necessary to identify the measure on which the requested information bears. Information is “on” a measure when it is about, relates to or concerns that measure. The provision does not require the measure to be the subject which the information is primarily, directly or immediately about. Information can concern more than one measure, including both a component and the broader programme of which it forms part.

3. The measure must be identified by considering the information in its factual and statutory context. Relevant matters may include why the information was produced, its importance to that purpose, its intended use, and whether access would enable the public to be better informed about or participate more effectively in environmental decision-making. The phrase “bigger picture” was unhelpful because it could distract from the statutory definition, but the Upper Tribunal had used it only to denote this permissible contextual inquiry.

4. A broad and purposive construction does not create a general right of access to information having any connection, however minimal, with an environmental factor. Information need not itself be intrinsically environmental, but neither does every item concerning a project with an environmental impact qualify. The boundary is fact- and context-specific and must be drawn by reference to the purposes of the Regulations, the Directive and the Aarhus Convention.

5. The communications and data component was integral and critical to the Smart Meter Programme rather than incidental to it. The review of that component could therefore properly be characterised as information on the programme as a whole. Access could also assist informed public participation concerning the choice of delivery model and the programme’s environmental objectives.

6. The matter was remitted to the General Regulatory Chamber of the First-tier Tribunal to determine the substantive issues under the applicable environmental-information regime.

1. Court of Appeal (Civil Division): The Department’s appeal was dismissed. The Upper Tribunal’s conclusion that the requested material fell within regulation 2(1)(c) of the Environmental Information Regulations 2004 was upheld, and the substantive issues were remitted to the First-tier Tribunal: [2017] EWCA Civ 844.

2. Upper Tribunal (Administrative Appeals Chamber): The First-tier Tribunal’s decision was set aside for legal error but remade with the same conclusion that the material was environmental information: [2015] UKUT 671 (AAC).

3. First-tier Tribunal (General Regulatory Chamber): On a preliminary issue, the tribunal held that the disputed information was environmental information and that the request should be considered under the environmental-information regime.

4. Information Commissioner: The Commissioner initially accepted that the Freedom of Information Act 2000 applied, but ordered disclosure on public-interest grounds. The Commissioner later supported the conclusion that the material was environmental information.