Introduction

The case of Vesco v (1) Information Commissioner and (2) Government Legal Department ([2019] UKUT 247 (AAC)) marks a significant development in the interpretation and application of the Environmental Information Regulations 2004 (EIRs). The appellant, Ms. Margaret Vesco, sought access to environmental information concerning emissions from flue pipes by directing a request to the Government Legal Department (GLD). Her request was denied on the grounds of being "manifestly unreasonable" under Regulation 12(4)(b) of the EIRs. This denial was upheld through subsequent appeals by the Information Commissioner and the First-tier Tribunal before being overturned by the Upper Tribunal. This commentary delves into the intricacies of the judgment, exploring its background, the legal principles applied, and its broader implications for environmental information rights in the UK.

Summary of the Judgment

The Upper Tribunal (Administrative Appeals Chamber) reviewed Ms. Vesco's appeal against the decision of the First-tier Tribunal, which in turn had upheld the refusals by the Government Legal Department and the Information Commissioner. The core issue centered on whether Ms. Vesco's repeated requests for information were manifestly unreasonable under Regulation 12(4)(b) of the EIRs. The Upper Tribunal concluded that the First-tier Tribunal erred in its legal reasoning by not adequately applying the manifestly unreasonable test and failing to properly consider the public interest factors. Consequently, the Upper Tribunal set aside the previous decisions and remitted the case for a rehearing by a differently constituted First-tier Tribunal.

Analysis

Precedents Cited

The judgment extensively references several key cases that have shaped the interpretation of information access laws in the UK. Notably, it cites:

• Craven v Information Commissioner and Dransfield v Information Commissioner ([2012] UKUT 442; [2015] 1 WLR 5316) - These cases provide foundational definitions and tests for assessing whether a request is vexatious or manifestly unreasonable.
• Export Credits Guarantee Department v Friends of the Earth ([2008] EWHC 638) - This case underscores the importance of balancing public interest in disclosure against any other competing interests.
• Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) - Emphasizes purposive interpretation of directives, a principle that guided the Tribunal's evaluation of the EIRs.
• Office for Communications v Information Commissioner (Case C-71/10) - Highlights the general rule favoring disclosure unless specific, clearly defined exceptions apply.

These precedents collectively informed the Upper Tribunal's stance that the First-tier Tribunal failed to appropriately apply the manifestly unreasonable test and did not adequately weigh the public interest factors.

Legal Reasoning

The Upper Tribunal meticulously dissected the legal framework governing the release of environmental information. Central to its reasoning was the interpretation of Regulation 12 of the EIRs, which outlines the conditions under which information requests can be denied. The Tribunal emphasized a three-stage test:

• Manifestly Unreasonable Request: Determining if the request lacks a reasonable foundation or is overly burdensome.
• Public Interest Test: Assessing whether the public interest in withholding the information outweighs that in its disclosure.
• Presumption in Favor of Disclosure: Recognizing that, all else being equal, information should generally be disclosed unless exceptional circumstances apply.

The Tribunal found that the First-tier Tribunal conflated terminology by using "vexatious" instead of "manifestly unreasonable," a significant misstep given the distinct legal contexts of the EIRs versus the Freedom of Information Act (FOIA). Furthermore, the Tribunal criticized the First-tier Tribunal for not thoroughly evaluating whether Ms. Vesco's request genuinely lacked merit or was merely a continuation of previous inquiries.

Additionally, the Upper Tribunal pointed out that the First-tier Tribunal failed to adequately engage with the public interest test, neglecting to assess factors such as the potential harm from disclosure, the public's right to environmental information, and the broader environmental protection policies underpinning the EIRs.

Impact

This judgment has far-reaching implications for the application of the EIRs in the UK. By clarifying the strict criteria for deeming a request manifestly unreasonable, it sets a higher threshold for public authorities to deny access to environmental information. This enhances the public's right to environmental transparency and accountability, reinforcing the principles enshrined in the Aarhus Convention and the Directive underpinning the EIRs.

Future cases involving requests for environmental information will likely reference this judgment to ensure that public authorities rigorously apply the three-stage test outlined by the Upper Tribunal. It also serves as a cautionary tale for tribunals to meticulously adhere to statutory interpretation principles and avoid conflating different legal terminologies.

Complex Concepts Simplified

Manifestly Unreasonable Requests

A "manifestly unreasonable" request under Regulation 12(4)(b) of the EIRs refers to a request for information that has no reasonable foundation or purpose. This could mean the information sought is trivial, overly broad, or intended to harass the public authority. The threshold is high, requiring the requester to demonstrate that their inquiry lacks merit objectively.

Public Interest Test

The public interest test involves weighing the benefits of disclosing information against any potential harm. Factors include the relevance of the information to environmental protection, the potential for misuse, and the overall benefits to society. Disclosure is favored unless there are compelling reasons against it.

Presumption in Favor of Disclosure

This principle dictates that, by default, environmental information should be made available to the public. Only when specific exceptions clearly apply can a public authority justifiably withhold information. This ensures transparency and supports informed public participation in environmental matters.

Conclusion

The Upper Tribunal's decision in Vesco v Information Commissioner serves as a pivotal reinforcement of the right to access environmental information in the UK. By delineating the stringent criteria for deeming requests manifestly unreasonable and emphasizing the primacy of the public interest in disclosure, the judgment fortifies the legal framework that supports environmental transparency and accountability. This not only empowers individuals and communities to engage meaningfully in environmental governance but also ensures that public authorities adhere to the highest standards of openness and responsiveness. As environmental concerns continue to gain prominence, such legal clarifications are indispensable in fostering a well-informed and participatory public, ultimately contributing to more effective environmental protection and sustainable development.