Tribunal Upholds Disclosure in The Secretary of State For Energy Security and Net Zero v The Information Commissioner Case, Reinforcing Transparency in Environmental Decision-making

Citation: [2024] UKFTT 184 (GRC)
Judgment on

Introduction

This article examines the decision in the case of The Secretary of State For Energy Security and Net Zero v The Information Commissioner, providing an analysis of the key legal principles applied. The case centered on an appeal against the Information Commissioner’s decision which favored the disclosure of information related to the Wylfa Newydd nuclear power station project proposed by Horizon Nuclear Power Ltd.

Key Facts

The key facts pertain to a request by a member of the public, Mr. Jas Chanay, for information from the Department for Business Energy and Industrial Strategy (BEIS) concerning the Wylfa Newydd nuclear power station project, which was later withdrawn. The BEIS withheld the information, citing exceptions under regulations 12(4)(e) and 12(4)(d) of the Environmental Information Regulations 2004 (EIR). These relate to internal communications and material in the course of completion respectively. Upon internal review and a subsequent complaint to the Information Commissioner, the refusal was challenged, ultimately resulting in the tribunal’s evaluation of the case.

The legal principles in this case are primarily based on the application of the EIR, derived from the Aarhus Convention and the EU Directive on access to environmental information. The tribunal focused on the two-part inquiry: which exceptions under the EIR apply, and if applicable, whether the public interest in disclosure outweighs the interests favoring non-disclosure.

Material in the Course of Completion

The tribunal considered the exception under EIR 12(4)(d), referring to “material in the course of completion”. It drew upon the Aarhus Convention Implementation Guide and related case law (e.g. CJEU’s decisions in Saint-Gobain and Flachglas Torgau) to conclude that for material to be classified under this exception, it should be anticipated that further work will occur within a reasonable time frame, which was not the case here.

Internal Communications

The exception under EIR 12(4)(e) was acknowledged by the tribunal for internal communications. However, it held that once particular information has been disclosed to a third party, it can no longer be considered an internal communication.

Confidentiality of Proceedings

The tribunal also addressed the exception for the confidentiality of proceedings under EIR 12(5)(d). Relying on ECJ jurisprudence (particularly the Flachglas Torgau decision), the tribunal determined that this exception was not engaged as there was no express provision in national law establishing the scope of ‘proceedings’ with precisely defined boundaries.

Public Interest Test

The tribunal weighed the public interest factors, considering the significant environmental and societal implications of a decision on a nuclear power station. It found transparency in governmental decision-making paramount, and the need for such openness outweighed any speculative risk of civil service inhibition or prejudice to future applications.

Outcomes

The appellate tribunal dismissed the appeal, affirming the Information Commissioner’s decision that favored disclosure. It held that the exceptions for internal communications and material in the course of completion did not extend to the information requested because no future work was anticipated on the application, and the information had already been communicated to the third party. The confidentiality of proceedings exception was also not engaged due to a lack of explicit legal provision defining ‘proceedings’.

Conclusion

In conclusion, The Secretary of State For Energy Security and Net Zero v The Information Commissioner illuminates the UK’s commitment to transparency in environmental decision-making processes. The tribunal emphasized that exceptions to disclosure should be construed narrowly, given the overarching interest in the public’s right to access environmental information. By dismissing the appeal and ordering disclosure, the tribunal reinforced legal principles that prioritize the disclosure of environmental information in line with international and EU-derived obligations.

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