Highways England Company Ltd v Information Commissioner and Henry Manisty: [2018] UKUT 423 (AAC) ; [2019] AACR 17
Upper Tribunal Administrative Appeals Chamber decision by Judge Jacobs on 12 December 2018
Read the full decision in
Judicial Summary
Reported as [2019] AACR 17
Information Rights – Aarhus Convention – Disclosure - Exceptions
The applicant requested detailed proposed route maps, relating to the area in which he lived concerning the possible route of the Expressway between Oxford and Cambridge. Highways England refused his request on the basis that the information requested formed part of its decision-making process which was still in the course of completion. The Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters of 1998 (‘the Convention’) provided for access to environmental information, subject to exceptions including one in respect of ‘material in the course of completion’. The Upper Tribunal considered the exception applying European Union (‘EU’) principles as well as the Implementation Guide for the Convention (2nd Edition 2014) and the EU Directive 2003/4/EC, which implemented the Convention. The Upper Tribunal also went on to consider the Directive which was in turn implemented by the Environmental Information Regulations 2004 (SI No 3391) (‘the Regulations’). In response to the Applicant’s request the Information Commissioner decided that the exception in Regulation 12(4)(d), which concerned a request for material still in the course of completion, to unfinished documents and to incomplete data, was engaged and that the balance of public interests was in favour of maintaining the exception. On appeal to the First-tier Tribunal it decided that the exception was not engaged and commented on an argument that releasing the information would blight the land in respect of planning. It did not undertake or purport to undertake a balancing exercise of the public interests involved. Highways England appealed with permission to the Upper Tribunal, at an oral hearing
Held, dismissing the appeal, that:
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the Regulations must be interpreted consistently with the Directive and in accordance with normal EU principles including the requirement that exceptions be interpreted restrictively but not so narrowly as to defeat its purpose of allowing public authorities to think in private;
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the exception cannot cover speculation or preliminary thoughts based on limited research and is concerned with ‘information’ that is held. It is only engaged if there has been a request and it is the information in the documents that is the subject of the request and the duty. It is not engaged when a piece of work is complete in itself. The terms of the request are important as the exception is wider than just ‘material in the course of completion’ and includes information that merely relates to that material;
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adverse consequences must not be made a threshold test for regulation 12(4)(d), it is simply a relevant factor that only arises if the exception is engaged;
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material must have a physical existence and it is not apt to describe something incorporeal like a project, exercise or a process; it is the material that must be in the course of completion not the project;
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the exception which contains expressions of everyday use must be applied consistently with its context and contains two elements (a) that it is engaged and (b) the balance of public interests is in favour of maintaining the exception. The exception gives rise to three possibilities, that it is not engaged, that it may be engaged with the balance in favour of maintaining the exception or it may be engaged with the balance in favour of disclosure. A decision that the exception is not engaged means that disclosure is appropriate irrespective of where the balance of public interests lie.
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Last updated 5 November 2020 + show all updates
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Decision selected for reporting as [2019] AACR 17
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First published.