High Court upholds Information Tribunal EIR decision

The High Court has dismissed the government’s appeal against the Information Tribunal in the first case of its kind under the Environmental Information Regulations. The Tribunal had ruled that the Export Credits Guarantee Department should disclose the submissions it received from other government departments in 2003 about the so-called “Sakhalin project”. This involved a $650 million project to extract oil and gas off the coast of the Sakhalin island, north of Japan, which involved risks to the survival of grey whales, an endangered species. Friends of the Earth had applied for the submissions under the EIRs.

The Information Commissioner had originally accepted ECGD’s arguments that the responses should be withheld under regulation 12(4)(e) of the EIRs, which applies to internal communications. However, the Tribunal agreed with FOE that the balance of public interests favoured disclosure. ECGD appealed against the Tribunal’s decision but the High Court today (March 17th) dismissed the appeal. The court, whose role is limited to hearing appeals on points of law, found that although Tribunal had made some errors they were not critical and that overall the decision was “made in accordance with the law.” It is not yet known whether the government will appeal to the Court of Appeal.

Earlier this month the High Court heard the first appeal involving the Freedom of Information Act’s exemption for policy formulation (section 35(1)). The Tribunal had ruled that the balance of public interest favoured disclosure of the so-called “gateway review” of the ID cards scheme. The decision has been challenged in the High Court by the Office of Government Commerce.

In a surprise development, the Attorney General has intervened in this case on behalf the Speaker of the House of Commons, arguing that the Tribunal’s decision breached Parliamentary privilege by quoting a House of Commons select committee report in support of its finding. Counsel for the Attorney General argued that the Tribunal could not accept a select committee report as evidence without also allowing other parties to the appeal to challenge its findings, but this would breach the 1689 Bill of Rights prohibition against a court questioning statements made in Parliament.

Ironically, the 2004 report from the works and pensions select committee had questioned whether “the current levels of secrecy are necessary”.

The High Court’s decision in this case is expected after Easter.

See:

Friends of the Earth press release

The Tribunal's decisions:
Friends of the Earth v Information Commissioner and Export Credits Guarantee Department (pdf)
Office of Government Commerce v Information Commissioner (pdf)