The requester had a long-standing concern about flue emissions and had previously made various requests for information on that subject to the Health and Safety Executive (“HSE”), which, after some correspondence, had declined to communicate substantively with the requester any further. The Information Commissioner, in a decision upheld by the First-tier Tribunal, decided that the HSE’s refusal to disclose information was justified pursuant to the exception in regulation 12(4)(b) of the Environmental Information Regulations 2004, implementing Parliament and Council Directive 2003/4/EC on public access to environmental information, namely that the request for information was manifestly unreasonable. The requester subsequently made a further request, this time addressed to the Government Legal Department, the Government’s principal legal adviser, requesting the name of the public authority responsible for enforcing the Gas Safety (Installation and Use) Regulations 1998 and the enforceability of British Standards BS 5440 on flue emissions. That request was refused, again in reliance on regulation 12(4)(b) of the 2004 Regulations, and the refusal was again upheld by the commissioner and by the First-tier Tribunal on appeal. The tribunal’s decision expressly incorporated the commissioner’s reasoning that the request, when set against the long history of correspondence on the subject, was “another vexatious request”, finding that the requester had already identified that the HSE was the body responsible for providing her with the information she sought and that her new request was a clear attempt to circumvent the earlier rulings of the commissioner and the tribunal.
On the requester’s further appeal—
Held, appeal allowed. (1) Since the purposes of Parliament and Council Directive 2003/4/EC included guaranteeing rights to access environmental information, the terms of the Environmental Information Regulations 2004, implementing that Directive, differed from other instruments governing recovery of information in that no exemptions under the 2004 Regulations were absolute and there was a presumption in favour of disclosure, set out in regulation 12(2), which did not exist under other freedom of information legislation. Where requests under the 2004 Regulations were being considered, it was important that all the tests in those Regulations were applied before a public authority decided to refuse to disclose information. The grounds for refusal of requests for environmental information were to be interpreted restrictively, taking into account for each particular case the public interest served by disclosure. For public authorities to be entitled to refuse a request for environmental information on the basis that it was manifestly unreasonable, a three-stage test applied on the wording of regulation 12, namely (i) whether the exception to disclosure applied (regulation 12(1)(a)), (ii) if so, whether the public interest in maintaining the exception outweighed the public interest in disclosing the information, in all the circumstances of the case (regulation 12(1)(b)), and (iii) whether the presumption in favour of disclosure meant that the information ought to be disclosed (regulation 12(2)). Therefore, where the exception in regulation 12(4)(b) was relied upon, and in contrast to the test applicable to vexatious or repeated requests under other freedom of information legislation, it was not merely a question of whether a request was manifestly unreasonable, and the public authority withholding environmental information also had to have applied the public interest test and the presumption in favour of disclosure (paras 14–16).
Guidance on the application of the three-stage test and the factors relevant at each stage (paras 17–20).
(2) In any appeal against a decision of the Information Commissioner, the First-tier Tribunal had to reach its own view on the matters before it, drawing where necessary on the expertise of its members. While it was entitled to give weight to the commissioner’s views as it thought appropriate in the circumstances, it was not bound by those findings. The tribunal had to apply the correct legal tests, take into account material considerations, and give proper and adequate reasons for the decision it reached. If the commissioner’s views exactly reflected those of the tribunal, then incorporation by reference might, in principle, be an acceptable shorthand way of writing up a decision, but, if the tribunal were to take that course, it needed to bear in mind that it had to reach its own view on the relevant tests and had to be independent and impartial between the parties, taking care that the contents of its decision, together with any extracts from the commissioner’s decision which had been properly and expressly incorporated, covered all relevant matters. The reasoning of the tribunal in the present case was inadequate. In so far as it had expressly incorporated the commissioner’s reasoning that the request was “another vexatious request”, its decision, even when read with the relevant paragraphs of the commissioner’s decision, did not properly apply the requirements of the manifestly unreasonable test since there was inadequate recognition that the manifestly unreasonable test was a high one and to be interpreted restrictively, and no proper consideration of whether the request had a reasonable foundation in that it would be of use to the requester, judged objectively. Nor did the decision demonstrate that the tribunal had properly considered the second and third stages of the test which had to be surmounted before a refusal to disclose could be justified. The tribunal had therefore erred in law by failing to apply the legal test properly, alternatively, it had failed to provide proper and adequate reasons for its decision, and its decision was set aside and remitted for reconsideration accordingly (paras 22–26).
The appeal was determined on written submissions.