29 - The Secretary of State Energy Security and…

The facts

On 6 March the First-tier Tribunal General Regulatory Chamber Information Rights handed down its decision in The Secretary of State for Energy Security and Net Zero v The Information Commissioner [2024] UKFTT 00184 (GRC), Case Reference: EA/2023/0216.

The appeal arose out of a proposal by Horizon Nuclear Power Ltd (“Horizon”) to build a nuclear power station at Wylfa in Anglesey. Horizon was acquired in 2012 by Hitachi Ltd a conglomerate which among other activities builds and maintains nuclear power stations.

The application for a DCO by Horizon Nuclear Power Wylfa Ltd to build the station was dated 1 June 2018, was made under the Planning Act 2008 (“the 2008 Act”). It has had a troubled history. The Examining Authority completed its examination of the application on 23 April 2019 and submitted its report to the Secretary of State for Business, Energy and Industrial Strategy” on 23 July 2019.

Activity by Horizon in relation to the project was suspended in January 2019 due to the failure to resolve issues around the funding of the project. On 16 September 2020 Hitachi announced that it was ending business operations in the UK in relation to the plant.

The DCO application was formally withdrawn on 27 January 2021. PINS then published the Examining Authority’s report on 4 February 2021.

On 8 March 2021 a member of the public (Mr Jas Chanay who was an objector to the DCO) wrote to what had become the Department for Business Energy and Industrial Strategy (“BEIS” following a machinery of government change on 7 February 2023 the Secretary of State for Energy and Net Zero became responsible for this policy area) and requested information in the following terms:

“Perhaps I may be permitted to enquire as to possible sight of the following:

options at different points in time: namely, DCO deadlines set 30 September 2020, 31 December 2020 and 30 April 2021, respectively;
provisional advice and assessment for the Secretary of State; and,
the Secretary of State's respective view (albeit, incomplete).”

The request was refused relying on the EIR reg.. 12(4)(d) and (e). Mr Chanay complained to the ICO.

The ICO ordered disclosure. The ICO said reg. 12(4)(d) was not applicable. The ICO considered that under reg. 12(4)(e) the public interest in disclosure outweighed the public interest in maintaining the exception.

The Secretary of State appealed seeking to rely on two new exceptions:

Regulation 12(5)(b) EIR (the “Course of Justice Exception”). This possibility had been identified by the ICO in the confidential annex to his decision notice and there has been subsequent agreement between the parties which has identified the parts of the documents which attract this exception and which they agree should not be disclosed.
That the entirety of the information was excepted from disclosure by reason of reg. 12(5)(d) EIR (the “Confidentiality of Proceedings Exception”)

The Secretary of State also argued: that the ICO erred in finding that “the material which is still in the course of completion, to unfinished documents or to incomplete data” exception in reg. 12(4)(d) EIR did not apply and in finding that the balance of public interest lay in disclosure.

The appeal was dismissed.

The Aarhus Convention

The Aarhus Convention featured heavily in the Tribunal’s reasoning. So,

In resisting the appeal the Commissioner noted that with respect to confidentiality of proceedings exception “there is no rule of law that gives the submissions process the necessary “confidentiality provided for by law” to engage the exception and further argued (relying on the Implementation Guide to the Aarhus Convention (“the Guide”) “public authorities may not unilaterally declare a particular proceeding confidential and stamp documents ‘confidential’ in order to withhold them from the public” and that “the factors to be taken into account in the balancing of the public interest [are] essentially the same whether either or both of the Confidentiality of Proceedings Exception and the Internal Communications Exception applies”: [19]
The Aarhus Convention, and the Guide, thus featured in the consideration of the legal framework: [27] - [29]. The Tribunal went on to say:

“31. The Implementation Guide published by UNECE accordingly by reason of the Vienna Convention Articles 31 and 32 should be taken into account in construing the Aarhus Convention as transposed into domestic law.

32. The Aarhus Convention provides by Article 4 Access to Environmental Information:

3…. (c) The request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.

4… (a) The confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;

33. These provisions of the Aarhus Convention are put into law through EIR regulation 12:

(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that —

….

(d)the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or

(e)the request involves the disclosure of internal communications.

(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect— ….

(d)the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law

34. The Guide addresses the issues raised by this case at page 84 (emphasis added):

“The public authority may refuse to disclose materials “in the course of completion” or materials “concerning internal communications”, but only when national law or customary practice exempts such materials. The Convention does not clarify what is meant by “customary practice” and this may differ according to the administrative law of an implementing Party. For example, for some Parties, establishing that such an exemption exists under “customary practice” may require evidence of established norms of administrative practice to that effect.

Even when the requirement exists in national law or customary practice, authorities are required to take into account the public interest that would be served by disclosure of the information before making a final decision to refuse the request. The requirement in paragraph 7 to put the reasons for refusal in writing means that authorities must document precisely how they considered the public interest as a part of their determination. The Convention does not clearly define “materials in the course of completion”. However it is clear that the expression “in the course of completion” relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared.

A request for access to raw environmental data cannot be refused on the grounds that it is “material in the course of completion” to be made publicly available only after processing or correction factors have been applied. In its findings on ACCC/C/2010/53 (United Kingdom), the Committee considered whether raw air pollution data collected from a monitoring station and not yet subject to data correction could be exempted from disclosure as “material in the course of completion”. The Committee considered that the raw data was itself environmental information within the meaning of article 2, paragraph 3 (a), of the Convention. The Committee held that should the authority have any concerns about disclosing the data, they should provide the raw data and advise that they were not processed according to the agreed and regulated system of processing raw environmental data.

The Committee held that the same would apply for the processed data, in which case the authorities should also advise on how those data were processed and what they represented.

Similarly, the mere status of something as a draft alone does not automatically bring it under the exception. The words “in the course of completion” suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the “course of completion” they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. “In the course of completion” suggests that the document will have more work done on it within some reasonable time frame. Other articles of the Convention also give some guidance as to how Parties might interpret “in the course of completion”. Articles 6, 7 and 8 concerning public participation require certain draft documents to be accessible for public review. Thus, drafts of documents such as permits, EIAs, policies, programmes, plans and executive regulations that are open for comment under the Convention would not be “materials in the course of completion” under this exception.

A similar conclusion was reached by the Conseil d’Etat of France, in case N° 266668 (7 August 2007) with respect to the use of the term “unfinished documents” in Directive 90/313/EEC. The Conseil d’Etat held that a provision excluding preliminary documents produced in the course of drawing up an administrative decision from the right of access to environmental information is not compatible with article 3, paragraph 3, of Directive 90/313/EEC which limits the possibility for a request for environmental information to be refused to when the request concerns “unfinished documents”. The second part of this exception concerns “internal communications”. Again, Parties may wish to clearly define “internal communications” in their national law. In some countries, the internal communications exception is intended to protect the personal opinions of government staff. It does not usually apply to factual materials even when they are still in preliminary or draft form. Opinions or statements expressed by public authorities acting as statutory consultees during a decision-making process cannot be considered as “internal communications”. Neither can studies commissioned by public authorities from related, but independent, entities. Moreover, once particular information has been disclosed by the public authority to a third party, it cannot be claimed to be an “internal communication”. Finally, even if one of these two exceptions applies, paragraph 3 (c) further requires Parties or public authorities to take into account the public interest in disclosure of the information. The public interest test is discussed again in paragraph 4”

3. The Tribunal went on to say at:

“36. The 12(4)(e) exception is clearly engaged by such communications between civil servants and their Minister. However the Guidance quoted above explicitly excludes the letters which have been sent out to a third party – once they have been sent they are not internal, while they are within the scope of the request on the basis that they were sent to the Secretary of State for consideration the transmission to the applicant meant that they ceased to be internal.

37. The 12(4)(d) exception “in the course of completion” is, in the light of the Aarhus Implementation Guide, problematic. The decision of the Conseil d’Etat was on the interpretation of Article 3(3) of the Directive 90/313/EEC (the predecessor to 2003/4/EC implementing the Aarhus information provisions) which provided:

“A request for information may be refused where it would involve the supply of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner.”

38. The Conseil D’Etat (the French Supreme Administrative Court) held that preliminary documents for a decision were not unfinished documents and therefore a regulation prevented their release was not compatible with the category of “unfinished documents” within the Directive. The Implementation Guide further suggests that for a document to be “in the course of completion” it must be anticipated that further work will be carried out “within some reasonable time frame” which patently is not the case with respect to this request. Mr Wagstaff in his evidence stated with respect to 12(4)(d): “It is claimed in respect of draft decision letters provided to the SoS for his consideration. I understand that the ICO accepts that this exception is engaged in respect of these documents, unless they were approved and sent out in identical terms.”

4. On the confidentiality issues the Tribunal said:

“46. The Appellant in relying on the caselaw of confidentiality and the designation of official documents as “OFFICIAL SENSITIVE” is relying on a general legal context. There is no legal prohibition on the Minister releasing the contents of submissions should he choose - that is more an issue for the Ministerial Code of Conduct; similarly the restriction on a civil servant releasing it is a question of the contract of employment. Furthermore the requirement identified “in particular that national law must clearly establish the scope of the concept of ‘proceedings’” is a further requirement of the legislation transposing the Aarhus arrangements which is not adequately met. Accordingly the tribunal is satisfied that exception 12(5)(d) is not engaged.

47. It may be noted that the Convention itself uses two distinct formulations for related questions with the narrower formulation “law” being for “proceedings” and the wider formulation “law or customary practice” being for the internal communications exception, this formulation more closely matches the actual arrangements for the “confidentiality of proceedings”. The Convention provides (so far as is relevant)-

3. A request for environmental information may be refused if: ….

(c) The request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.

4. A request for environmental information may be refused if the disclosure would adversely affect:

(a) The confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;

48. While some material may fall to be considered as relating to emissions since 12(5)(d) does not apply it is unnecessary to consider it further.”

5.On public interest the Tribunal held:

“52. The Appellant’s argument that disclosure would function as advice to a future applicant for permission to build a power station on the site and that this would be to the detriment of other applicants (who had not seen it) is fundamentally flawed. The information would be available to all potential applicants as well as civil society including potential objectors and the public bodies who would have an interest (including the “activists or the media” who may attract the OFFICIAL SENSITIVE label.) Mr Wagstaff attempted to advance arguments both as to the general implications of disclosing the advice and the site-specific issues “Officials have to advise on multiple applications and similar issues may come up which need to be addressed in the submission. Officials need to be free to discuss the implications if such issues in planning applications without the concern that this advice could be made publicly available.” However transparency as to how similar issues will be treated is a fundamental aspect of the rule of law – as Ban Ki-Moon wrote in the preface to the Implementation Guide “The Aarhus Convention’s twin protections for environmental and human rights, and its focus on involving the public, provide a mechanism for holding governments to account in their efforts to address the multi-dimensional challenges facing our world today”. The desire to avoid disclosure of the advice of civil servants advising the Secretary of State on what would have been one of the most consequential decisions he would take on the basis that in the future they may be inhibited and less candid than would otherwise be the case pays little regard to the sophistication and integrity of civil servants as set out in Davies. Although the Appellant’s arguments are strongly advanced they are based on a very traditional UK approach to public administration, as Bingham (quoting Armatya Sen) wrote at the conclusion of his lectures “we have to recognise that our global civilization is a world heritage- not just a collection of disparate local cultures”.

53. As the decision was never taken, any future application will of necessity be different and its consideration will not be prejudiced by revealing how the intricacies of this application were unpicked. The significance of the issue raises the importance of transparency and the weight of public interest in transparency about this major issue far outweighs any residual risk from disclosure. The incremental impact of the application of the confidentiality of proceedings exception or indeed the unfinished document exception would be slight, the harms identified for all these exceptions picked out are closely related – the identified consequential harm of disclosure is little enhanced by salami slicing the reasoning.”

This blog post was written by James Maurici KC.

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.