Case law >> 'Right' to conceal information

16th April 2012

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  • Central government ,
  • Local government



Lexis PSL's Colleen Theron and Deirdre Lyons discuss the Birkett v Defra case and what it means for public authorities relying on disclosure exemptions under the EIR

In Birkett v Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606, the Court of Appeal held that public authorities relying on exceptions or exemptions under the Environmental Information Regulations 2004 (EIR) or the Freedom of Information Act 2000 to refuse to provide environmental information may subsequently rely on further exceptions, despite not having specified those in an initial refusal to disclose information.

The EIR implement EU Directive 2003/4/EC on public access to environmental information. Public authorities can refuse a request on the basis of statutory exceptions, subject to the public interest test. Exceptions include where the request or disclosure:

  • involves the disclosure of internal communications (reg. 12(4)(e));
  • would adversely affect the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature (reg. 12(5)(b)); and
  • would adversely affect the confidentiality of the proceedings (reg. 12(5)(d)).

Article 6 of Directive 2003/4/EC provides a right of review before a court for any applicant who considers that a request for information has been ignored, wrongfully refused or inadequately answered.

Simon Birkett, director of Campaign for Clean Air in London, appealed against an Upper Tribunal (Administrative Appeals Chamber) judgment that Defra could “rely as of right” on new exceptions for refusing environmental information disclosure rather than the original reasons given to the Information Commissioner and/or the First-tier Tribunal proceedings.

The Court of Appeal dismissed the appeal, which was part of an ongoing three-year battle with Defra to obtain environmental information relating to discussions between the previous government and the mayor of London on air pollution and UK compliance with EU air-quality laws.

In the original case, Defra had refused an environmental information request on the basis of the reg. 12(4)(e) exception. Birkett argued that it was necessary to interpret the Directive on public access to environmental information, and in turn the EIR as preventing public authorities from relying on new exemptions after internal review.

Without this, it was argued that the complainant would be denied an effective remedy because they would not know the public authority’s reasons for refusing their request.

At appeal, Defra continued to rely on the reg. 12(4)(e) exception, but to the extent that the disputed information benefited from legal advice privilege, it also relied on the reg. 12(5)(b) and (d) exceptions. The court concluded that Defra could rely on the new exceptions and was entitled to refuse the request.

Consequently, the general rule is that public authorities can rely on any Environmental Information Regulations or Freedom of Information exceptions or exemptions at any time.

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