Sheelagh Casey-Hulme v The Information Commissioner & Anor

Articles 2 and 8 of the European Convention on Human Rights are not additional factors to be weighed in the public-interest balance under regulation 12 of the Environmental Information Regulations 2004. The EIR provide a separate, applicant-blind and motive-blind regime for access to environmental information. The seriousness of environmental and health matters may be relevant to the public interest in disclosure, but describing those matters as engaging Convention rights adds no additional weight. The EIR cannot be used to enforce parallel Convention rights or to obtain a result more favourable than the statutory scheme provides. A tribunal must nevertheless consider all relevant facts, including serious risks to health and wellbeing, and apply the presumption in favour of disclosure. An appeal will fail where the tribunal has done so and its conclusion that a manifestly unreasonable request should be refused is open to it.

The appellant requested from the Department for Environment, Food and Rural Affairs all information held about Walley’s Quarry landfill site. The request was refused under regulation 12(4)(b) of the Environmental Information Regulations 2004 as manifestly unreasonable. The Information Commissioner and the First-tier Tribunal upheld the refusal, finding that the request was exceptionally broad, would require at least 122 hours and probably more than 300 hours of work, and had limited incremental value given information already in the public domain.

The First-tier Tribunal also held that Articles 2 and 8 of the Convention were irrelevant to the EIR public-interest test. The appeal concerned whether that conclusion was legally wrong, and whether the seriousness of the environmental and health impacts had been properly considered.

1. Appeal dismissed. The First-tier Tribunal’s decision contained no error of law. The request was accepted to be extremely broad, disproportionate and manifestly unreasonable under regulation 12(4)(b) of the Environmental Information Regulations 2004. The public interest in maintaining the exception outweighed the public interest in disclosure.
2. The EIR establish a comprehensive statutory scheme for access to environmental information. Their public-interest test is applicant-blind and motive-blind. It does not change according to the requester’s identity or private rights.
3. Articles 2 and 8 of the Convention are not additional matters which must be imported into the regulation 12 balance. Where the underlying environmental and health facts are relevant, they must be considered as part of the ordinary public-interest assessment. Characterising those facts as engaging Convention rights does not give them additional weight. The EIR cannot be repurposed to enforce parallel Convention rights.
4. The court distinguished the Strasbourg cases concerning failures to provide essential environmental information. In the present case, substantial information was already available publicly, and the appellant did not assert a freestanding Convention right to the requested material. Any claim that the state had failed to comply with a Convention obligation belonged under the Human Rights Act 1998 or by judicial review.
5. The Tribunal had expressly recognised the serious health and environmental effects, the existing public information and the public resources required to answer the request. Its weighing of those matters against the burden of disclosure was open to it. The appellate tribunal was required to respect the fact-finder’s assessment of weight absent a compelling reason or a rationally insupportable conclusion.
6. The refusal of the appeal was made under section 11 of the Tribunals, Courts and Enforcement Act 2007.

1. Upper Tribunal (Administrative Appeals Chamber): appeal dismissed. The First-tier Tribunal’s decision dated 25 September 2024 contained no error on a point of law.
2. First-tier Tribunal (General Regulatory Chamber): appeal against the Information Commissioner’s decision was dismissed. The Tribunal upheld refusal of the request under regulation 12(4)(b) of the Environmental Information Regulations 2004: [2023] UKFTT 00779 (GRC).
3. Information Commissioner: decision notice dated 31 October 2022 upheld DEFRA’s refusal of the request as manifestly unreasonable.