Shiel v The Information Commissioner

For information to fall within regulation 2(1)(c) of the Environmental Information Regulations 2004, it must be on an identified measure or activity which affects, is likely to affect, or is designed to protect the relevant environmental elements or factors. The definition is broad and purposive, but it does not create a general right of access to information having only a loose or minimal environmental connection.

A geographical site is not itself a measure or activity. Nor is a corporate body merely because it may make measures or carry out activities. Information concerning governance, appointments, accounts or interests will not qualify merely because it concerns an authority operating in an environmental setting.

The appellant requested information from the North Sunderland Harbour Commissioners, a public authority for the purposes of the Environmental Information Regulations 2004 but not the Freedom of Information Act 2000. The requests concerned, among other matters, fishermen registered with the Commissioners, their governance, policies, accounts and registers of interests.

Two differently constituted First-tier Tribunal panels made decisions on 4 January 2024 and 22 January 2024. They allowed a limited part of one appeal concerning stakeholder engagement and complaints procedures, but otherwise rejected the contention that the requested information was environmental information. One panel also held that its jurisdiction was confined to the Information Commissioner’s decision notice.

The appellant appealed to the Upper Tribunal. The central issue was whether the requested information was environmental information under regulation 2(1), particularly regulation 2(1)(c).

1. The appeals were dismissed. Neither First-tier Tribunal decision involved an error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.

2. Regulation 2(1)(c) of the Environmental Information Regulations 2004 must be read as a whole and construed purposively. It applies only to information on a measure or activity that satisfies the specified environmental qualifications. A broad approach does not permit a request to be treated as environmental information because it has some possible connection with the environment. That would create the general and unlimited access which the authorities exclude.

3. The information must be on the identified measure or activity, rather than using that measure or activity as a convenient peg for information which is really about the environment in a general sense. It must also properly be described as environmental information. Whether the connection is sufficient is fact- and context-specific.

4. The harbour was a geographical site, not a measure or an activity. Its construction and maintenance might involve activities, and the North Sunderland Harbour Order 1931, policies, plans and programmes could be measures. The Commissioners, however, were a corporate body capable of making measures and undertaking activities; they were not themselves either. The requested governance information therefore did not qualify merely because the Commissioners operated the harbour.

5. The First-tier Tribunal had also correctly confined the first appeal to the request dealt with in the Commissioner’s decision notice. Section 57 of the Freedom of Information Act 2000 limited its jurisdiction accordingly.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeals and held that the First-tier Tribunal decisions disclosed no error of law: [2024] UKUT 369 (AAC).
• First-tier Tribunal (General Regulatory Chamber): decisions in EA/2023/0133 and EA/2023/0338 dated 4 January 2024 and 22 January 2024. The tribunal allowed only limited parts of the second appeal and otherwise dismissed the appeals.