A landmark Upper Tribunal decision has made it easier for the government to withhold information requested under the Environmental Information Regulations.
On 14 February, the tribunal heard an appeal by the environment department (DEFRA) regarding a request for information by the Campaign for Clean Air in London (CAL) and the Information Commissioner’s Office (ICO). The request was made over two years ago.
The tribunal ruled that DEFRA could add or substitute exemptions to avoid disclosing information requested under the freedom of information regime. The ruling followed a precedent set in an unrelated Home Office case heard the same day.
The ruling means DEFRA can continue to argue it was legitimate for it to withhold information on London’s air quality.
At an earlier First-tier Tribunal hearing, DEFRA had belatedly claimed legal advice privilege, allowing it to withhold information from CAL on air pollution in London (ENDS Report 432, p 20).
When this was rejected, DEFRA appealed and the Upper Tribunal was tasked with deciding the legality of such a late claim.
Had the information been released, it might have influenced the European Commission’s decision to give a conditional extension to the deadline for meeting coarse particulate limits (see p 27).
CAL argues that the public interest in favour of disclosure is overwhelming. Its director, Simon Birkett, said: “This case raises significant issues of law, particularly regarding the interpretation of the Environmental Information Regulations 2004.”
CAL has applied to the Court of Appeal for permission to appeal. The challenge is being made in conjunction with Friends of the Earth.