16th January, 2017
Access to environmental information v confidentiality
Peter Higham v Information Commissioner and another (EA/2015/0078)
Opinion of Advocate General in Case C-60/15 P Saint-Gobain Glass Deutschland GmbH v European Commission
There are often tensions between the right to know and commercial confidentiality.
For instance, under Regulation 5 of the Environmental Information Regulations 2004 – which implement EU Directive 2003/4/CE on access to Environmental Information – there is an obligation to disclose environmental information on request. However, that obligation is subject to the exceptions to the rule under regulation 12. Regulation 12 includes a list of circumstances including commercial confidentiality where the public authority may refuse to disclose information.
But Regulation 12 (1) (b) in turn moderates the commercial confidentiality exception because a public authority may only refuse disclosure if “in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.”
The appellant in this case had requested the aggregated financial data from Cornwall Council relating to proposals for wind turbine scheme. The council refused the request under the exemption at 12 (5) (e) citing commercial confidentiality. The Information Commissioner agreed, the decision was appealed to the First Tier Tribunal (FTT) and then appealed to the Upper Tribunal which remitted the case to the FTT.
The FTT then provided its ruling. The test to be applied was “whether the harm which the Information Commissioner and the Council contend for is more likely than not to occur if we order disclosure. . .” Although there would be some limited harm to the council’s negotiating position in releasing information relating to financial projections for the scheme, the information should be released because of the public interest factors.
The council had argued earlier in the process that it did not have the aggregated information only separate data so it did not “hold” such information. The FTT repeated the earlier finding by the Upper Tribunal that even where no aggregate information existed, it can still be subject to disclosure requirements: “In general, information which can be made available by a process of simple addition of figures already compiled and recorded would appear to be information ‘held’ by a public authority.”
In Saint-Gobain Glass Deutschland GmbH v European Commission the company Saint-Gobbain appealed an earlier ruling of the General Court of the European Union that supported the European Commission’s refusal of an information request relating to documents sent to the Commission by the German Government on the allocation of greenhouse gas emission allowances. The Commission had argued that the refusal was on the grounds that the request would “adversely affect the confidentiality of the proceedings of public authorities. . “
The Advocate General – in his advisory role to the Court – suggested in his Opinion that such exemptions should be read narrowly and went on to recommend the court should set aside the judgement of the lower court.
Both the decision of the FTT (in the context of domestic law relating to confidentiality exemptions) and the opinion of the Advocate General in the European Court of Justice are a reminder of the presumption which is derived from the Aarhus Convention that environmental information should be made available to the public including companies and that institutions of the member states as well as the Union itself are subject to such requests. Exemptions must be read narrowly – particularly where there is a public interest in disclosure.
However, given that the source of the Regulations lies in the European Directive and the Arhuus Convention – the post Brexit situation may be different from the present circumstances. It is difficult to predict whether requesters will be able to rely on such rights once the split with Europe has occurred.
As produced by Justin Neal for Environmental Law Monthly November 2016 edition – Volume 25 Number 11
To read the November 2016 issue of Environmental Law Monthly in full please click here
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