27 - The “course of justice” exemption: bare…

On 12 February 2024, the First-tier Tribunal handed down its decision in Ball v Information Commissioner [2024] UKFTT 00129, which makes for interesting reading in the context of information which a public authority may be gathering in a context where it may in the future have to decide whether (and if so what) action to take against a third party but where no proceedings are currently in the offing.

The complaint concerned information which Mr Ball had requested from Hinkley & Bosworth Borough Council in respect of noise emanating from Mallory Park Racing Circuit.

The Council was responsible for monitoring noise from the circuit and in November 2014 had issued a noise abatement notice (“NAN”) which stipulated a range of limits with which the circuit had to comply, such as upper limits for noise levels on ‘race days’, ‘high noise days’ and ‘medium noise days’, an annual limit on the number of those days, how many days there could be within a particular period, alongside other restrictions.

The Appellant (amongst other residents) had made a number of complaints to the Council as to noise emanating from the circuit. It seems that in response to one complaint, the Council had stated that it had commissioned an acoustic consultant to comment on the technical detail. In September 2021 (after some 5 months had passed) the Appellant wrote to the Council requesting (ii) a copy of the Acoustic Consultant’s Report, together with (ii) the various drafts of the report (which had been referred to in correspondence with the Appellant) and correspondence regarding the drafts. It also requested (iii) a policy that the Council was apparently considering drafting for investigating potential breaches of the NAN and how the report would guide that policy.

The Council refused the request in reliance on the exemptions in regulations 12(5)(e) and (b) for requests (i) and (ii) and regulation 12(4)(a) for request (iii).

The Appellant complained to the Information Commissioner.

With regards to the ‘policy’ the Council maintained it did not have a ‘policy’ but had informed the Information Commissioner that it did have “an internal procedure document which is considered throughout the conduct of any investigations concerning Mallory Park” which it provided to the Commissioner on the basis that it considered reg 12(5)(b) would apply to that document if it had been requested.

The Information Commissioner upheld the refusal of all requests under reg 12(5)(b).

The core reasoning was summarised at para 14 of the FTT’s decision:

“b. the Council had explained that the information requested was held to inform an inquiry under the EPA , and, specifically, an investigation into whether the NAN had been breached; disclosure of the information would reveal the basis of the Council’s position in the event of any requests for variation of the NAN Schedule, as well as any potential prosecution for breach of the NAN; he recognised that the information related to live matters being considered under the EPA , for which the Council has a statutory responsibility to undertake inquiries; it was therefore reasonable for him to conclude that disclosure of the information would reveal to the party under inquiry, the basis of the Council’s position and the factors it was considering in that context; such disclosure would therefore adversely affect the course of justice.

c. he was mindful that Regulation 12(2) EIR required the Council to apply a presumption in favour of disclosure when relying on Regulation 12(5)(b) EIR; on the one hand, he recognised that the matter was a matter of importance to the Appellant and other residents of the village affected by the noise, and that the Appellant had submitted to him that certain parts of the information requested had since been disclosed by the Council to local residents and that the basis of the Council’s monitoring was technically flawed;

d. on the other hand the information requested directly informed how the Council was undertaking its duty in inquiries, the findings of which would consider whether a party had breached a legal notice, and which might then result in that party being subject to prosecution; disclosure would alert that party to how the Council was undertaking noise monitoring, and the factors it was taking into account; consequently the integrity of its inquiries would be jeopardised; there was a significant public interest that the course of justice should not be adversely affected in such a way;”

On appeal to the FTT, the Tribunal noted that where a party failed to comply with an NAN and prosecution followed it would usually be brought by a local authority, but it would be open to others, such as affected neighbours, to bring a private prosecution or make a complaint to the Magistrates’ Court.

At para 43, the FTT noted that the Commissioner had asked the Council to clarify which limb of reg 12(5)(b) it was relying on and if there was, for example, any claim for legal advice / litigation privilege.

The Council’s response was that:

“”… The Council can confirm that disclosure would adversely affect the course of justice and any potential enquiry of a criminal nature.

The adverse effect would be considerable as it would prejudice the Council’s position in the ongoing monitoring and assessment of requests for variations to the Schedule (which requires the Council’s agreement) as well as any potential prosecution of a breach of the Noise Abatement Notice. This in turn would adversely affect the Council’s statutory responsibilities under the Environmental Protection Act 1990 , its ability to protect the public from nuisance and its ability to effectively address enforcement of this race track site.

In the exercise of the Council’s duty a flexible approach is essential to balance the often conflicting needs of a Company, residents and the local economy as well as ensuring that the Council can meet its duty under the Environmental Protection Act . Disclosure would adversely affect the Council’s ability to balance those needs as it would undermine the discretional and enforcement abilities .”

At para 45, the FTT commented that the Council appeared to regard the term “the course of justice” , which the Tribunal acknowledged was a broad term, as “”an umbrella term covering its ongoing monitoring and assessment activities, and “any potential enquiry of criminal nature.””

The FTT did not consider the Council to have substantiated its case that the exemption was made out:

“47. The only evidence before us from the Council on such matters was the Council’s response of 26 October 2022 to the Commissioner’s investigations, which we have already set out. The Council said that disclosure would adversely affect “ any potential enquiry” and ”any potential prosecution.” We consider that these references are speculative. As the Appellant put it to us, and we accept, there will always be some ongoing monitoring and enquiry into noise levels, given both the Council’s general obligations in that regard and the number of complaints about Mallory Park being considered at any given time.

48. There is no evidence before us that there were any court proceedings or pre-proceeding activities relating to enforcement of the NAN which were live, imminent or in contemplation either at the time of refusal of the request (October 2021), or the Council maintaining its position on internal review (January 2022) or even a year on from refusal of the request, in October 2022 when the Council was responding to the Commissioner’s investigation.

49. In addition to the adverse effect on any potential enquiry or potential prosecution for which it contended, the Council said that disclosure would prejudice its ongoing monitoring and variation request assessment activities , which would in turn adversely affect its statutory responsibilities under the EPA , as well as its ability to protect the public from nuisance, and effectively “ address “ enforcement. It said that disclosure would undermine its “ discretional and enforcement abilities” and consequently adversely affect its ability to balance the often-conflicting needs of RSL, residents and the local economy.

50. The test is that disclosure “would” adversely affect the protected interest. That is a higher hurdle than “would be likely” and requires a finding of the adverse effect on the balance of probabilities. We note that although the Commissioner initially correctly identified the test as “would adversely affect” in his Response to the Notice of Appeal, he fell into error when he subsequently submitted that the disclosure of the disputed information “would be likely to adversely affect” what he described as the Council’s inquiry and investigation.

51. We do not accept that the Council has demonstrated that disclosure of the disputed information would adversely affect any of the interests it has sought to identify, whether on the balance of probabilities or at all. Its reference to potential prosecution is a speculative one. The Council’s monitoring activity is a technical exercise which would, in our view, be unaffected by disclosure of the disputed information. Its assessment of variation requests will presumably be undertaken on a case-by-case basis, and there is no evidence explaining how this assessment would be adversely affected by disclosure. The Council did not identify precisely how or why its statutory responsibilities would be adversely affected. It did not identify what its relevant, discretional abilities are or how they, or its enforcement abilities, would be undermined by disclosure. It gave no explanation at all as to how disclosure would adversely affect its ability to protect the public from excess noise. To the extent that the Council must consider matters of practicality and the interests of others as recognised by Eyre J, that is not an exercise which, in our view, would be adversely affected by disclosure of the disputed information.

52. In our view, the Council’s statements as to these matters were bare assertions. The Commissioner has not drawn our attention to any other, relevant evidence, and thus on the evidence available to us, we cannot see how disclosure of the disputed information would adversely affect any of the matters identified by the Council.”

The FTT went on to consider the public interest test, and was clear it would have found against the Council on that basis also. Para 70 makes for particularly interesting reading, in the context of alleged prejudice to future prosecutions:

"70. To the extent that the Council argues that prejudice to any potential prosecution is a public interest factor in favour of maintaining the exception from disclosure, we are unconvinced. The outcome of any prosecution would rest on whether the prosecuting authority could establish the requisite elements of the offence to the Court’s satisfaction, on the facts of the given case, and the Magistrates’ Court would consider the defences submitted. We do not consider that it can be asserted as a general truth that disclosure of the disputed information would prejudice any particular prosecution. Moreover, if there were anything in it which, if disclosed, might undermine prosecutions generally, then it seems to us that that raises a fundamental matter of public interest as to the Council’s general ability to protect the public in any event. That is a force for disclosure in the public interest balance.”

The FTT therefore directed that the information be disclosed to the Appellant, save for one passage commencing with the words ‘Legal Advice’ which the Council was entitled to withhold.

This blog post was written by Jacqueline Lean.

Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.