Introduction

In the case of The Department for Energy and Climate Change v. The Information Commissioner & Anor ([2015] UKUT 671 (AAC)), the Upper Tribunal (Administrative Appeals Chamber) addressed a pivotal issue concerning the demarcation between the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR). The appellant, the Department for Energy and Climate Change (DECC), sought to overturn a First-tier Tribunal (FTT) decision that classified a Project Assessment Review (PAR) under the EIR rather than FOIA. The crux of the dispute revolved around whether the PAR, related to the Smart Meters Programme (SMP), should be governed by FOIA or the EIR, thereby determining the applicable access regime for Mr. Henney's information request.

The parties involved include DECC, the Information Commissioner (IC), and Mr. Henney, a professional with expertise in energy usage and policy. The key issue was the correct application and interpretation of regulation 2(1)(c) and (e) of the EIR in determining whether the requested PAR constitutes environmental information.

Summary of the Judgment

The Upper Tribunal allowed DECC's appeal, finding that the FTT had erred in its legal reasoning when classifying the PAR under the EIR. The Upper Tribunal remade the FTT's decision, concluding that the PAR constituted environmental information under regulation 2(1)(c) of the EIR and not under FOIA. Consequently, the case was remitted back to the FTT to address the substantive issues under the correct access regime, the EIR.

The Upper Tribunal emphasized that while the PAR relates to the communications and data aspects of the SMP, it is intrinsically connected to the overall environmental objectives of the programme. Therefore, under a broader interpretation aligned with the Aarhus Convention and EU directives, the PAR falls within the scope of environmental information requiring disclosure under the EIR.

Analysis

Precedents Cited

The judgment extensively referenced two key tribunal cases:

• Mersey Tunnel Users Association v Information Commissioner: This case involved the classification of information related to a major infrastructure project under regulation 2(1)(c) of the EIR due to its significant environmental impact.
• London Borough of Southwark v Information Commissioner (Lend Lease): Initially deemed an EIR case, it was later interpreted primarily under regulation 2(1)(e) due to its focus on economic analyses within the framework of environmental measures.

The Upper Tribunal differentiated these cases by highlighting that Mersey Tunnel was a clear regulation 2(1)(c) case concerning environmental measures directly, whereas Lend Lease was predominantly a regulation 2(1)(e) case focusing on economic analyses related to environmental measures.

Legal Reasoning

The Tribunal underscored several legal principles:

• Broad Interpretation: Emphasizing the need for a liberal reading of the EIR in line with the Aarhus Convention and EU Directive, ensuring comprehensive access to environmental information.
• Connectedness to Environmental Impact: Maintaining that even if information pertains to a specific component of an environmental measure, its connection to the broader environmental objectives qualifies it under the EIR.
• Regulation Hierarchy: Clarifying that once information is classified under the EIR, FOIA's scope is excluded for that particular request.

The Tribunal concluded that the PAR, although focused on communications and data, is integral to the SMP's environmental objectives, thereby falling under regulation 2(1)(c). This holistic approach aligns with ensuring public participation and transparency in environmental decision-making.

Impact

This judgment reinforces the precedence that environmental information, even when indirectly related to specific components of a programme, should be disclosed under the EIR if it serves broader environmental objectives. It delineates the boundaries between FOIA and EIR more clearly, providing tribunals and public authorities with a structured approach to classify information requests. Future cases involving complex programmes with intertwined environmental aspects will reference this judgment to determine the appropriate access regime, potentially expanding the scope of information disclosed under the EIR.

Complex Concepts Simplified

These definitions clarify the jurisdiction and applicability of the EIR versus FOIA, particularly in cases where information interrelates environmental impact and economic considerations.

Conclusion

The Upper Tribunal's decision in The Department for Energy and Climate Change v. The Information Commissioner & Anor serves as a critical interpretation of the boundary between the EIR and FOIA. By affirming that the PAR falls under regulation 2(1)(c) of the EIR due to its integral role in the SMP's environmental objectives, the Tribunal has strengthened the framework for public access to comprehensive environmental information. This judgment not only clarifies legal ambiguities but also enhances transparency and public participation in environmental governance. For legal practitioners and public authorities, this serves as a guiding precedent in navigating information disclosure within multifaceted governmental programmes.