The Secretary of State For Energy Security and Net Zero v The Information Commissioner [2024] UKFTT 184 (GRC)

“38. Submissions set out the reasoning of officials, along with the course of action that officials recommend. If the SoS does not accept that recommendation then officials would need to rework their recommendation and draft a fresh submission that reflected or addressed the SoS’s views. It would be a breach of confidentiality if the earlier advice were to be made public, particularly if the subsequent direction of the decision and policy considerations had changed. This divergence will generate its own questions adding further public and political scrutiny on decisions, which are currently conducted with the expectation that they will be treated in confidence and not subject to public scrutiny. 39. I do not accept that because this application did not conclude in a formal decision, and was withdrawn, that these circumstances (compared to a formal decision by the SoS to refuse or consent an application) somehow weakens the reliance on the exceptions. These submissions were submitted on the basis that they were confidential and part of the confidential process of decision-making to which I have referred. Moreover, this situation would be the same as for any other project/site where planning permission has been granted or refused; the matters are seldom straightforward; a series of options and possibilities need to be set out, and the various considerations should not be put into the public domain as this would risk future applicants or interested parties “second guessing” how a case might go on the basis of having access to these internal considerations. Regardless of the outcome of the determination, we treat the submissions that are made to the SoS equally and the confidential nature of the documents does not change once the planning process is completed.”

“….The submission could cover factual issues peculiar to the individual site and/or considerations about how current, and potentially developing, planning policy applies to a particular case. 49. 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. A safe space to consider and deliberate government policy is fundamental to officials being able to advise Ministers candidly. If confidential written advice were made publicly available, officials would have to consider the possible implications of its potential publication.”

“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, including climate change, biodiversity loss, poverty reduction, increasing energy demands, rapid urbanization, and air and water pollution. The Guide is an essential reference for policy-makers, legislators and officials at all levels of government. It contains important guidance for members of the public, including non-governmental organizations, seeking to exercise their rights, as well as for those in the private sector engaged in activities that are subject to the Convention. The Guide will equally interest practitioners and academics specializing in the issues covered by the Convention, as well as States not currently party to the Convention. The second edition of the Guide builds on the considerable experience amassed during the Convention’s implementation. It provides practical examples and offers valuable insights from the findings of the Aarhus Convention Compliance Committee, a unique body inspired by human rights treaty mechanisms. I commend this publication to all those with an interest in promoting environmental democracy and sustainable development.”

“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”

“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.”

“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.”

“It will include, but is not limited to: • formal meetings to consider matters that are within the authority’s jurisdiction • situations where an authority is exercising its statutory decision-making powers • legal proceedings.” • formal meetings to consider matters that are within the authority’s jurisdiction • situations where an authority is exercising its statutory decision-making powers • legal proceedings.”

“The scope of ‘proceedings’ is not defined. However, I consider that the term must broadly apply to the final decision making stages of an authority…In the particular circumstances, the [Department] and TRUK were engaged in legal proceedings, which were not in themselves the proceedings of the [Department] as they fell to be determined by the High Court. However, in the course of the legal proceedings, the appellants had to make their own decisions about how those proceedings should be conducted…it appears to me that the decisions taken by the [Department] about their conduct of the legal proceedings potentially falls within the scope of their own regulation 12(5)(d) ‘proceedings’. This is because their own conduct of the litigation required formal decision making steps and consideration of evidence and legal advice….”

“60 According to settled case-law, while it is essential that the legal situation resulting from national implementing measures is sufficiently precise and clear to enable the individuals concerned to know the extent of their rights and obligations, it is none the less the case that, according to the very words of the third paragraph of Article 288 TFEU, Member States may choose the form and methods for implementing directives which best ensure the result to be achieved by the directives, and that provision shows that the transposition of a directive into national law does not necessarily require legislative action in each Member State. 61 However, while it is true that transposing a directive into national law does not require the provisions of the directive to be formally enacted in an express and specific legal provision, since the general legal context may be sufficient for its implementation, depending on its content (see, in particular, Case 29/84 Commission v Germany [1985] ECR 1661, paragraphs 22 and 23; Case C-217/97 Commission v Germany [1999] ECR I-5087, paragraphs 31 and 32; and Case C-233/00 Commission v France [2003] ECR I-6625, paragraph 76), it should be noted that by specifying in indent (a) of the first subparagraph of Article 4(2) of Directive 2003/4 that the protection of the confidentiality of public proceedings must be ‘provided for by law’, a condition which corresponds to the requirement laid down in Article 4(4) of the Aarhus Convention that the confidentiality of proceedings must be ‘provided for under national law’, the European Union legislature clearly wanted an express provision to exist in national law with a precisely defined scope, and not merely a general legal context. 62 However, that specification cannot be interpreted as requiring all the conditions for application of that ground for refusing access to environmental information to be determined in detail since, by their very nature, decisions taken in that domain are heavily dependant on the actual context in which they are adopted and necessitate an assessment of the nature of the documents in question and the stage of the administrative procedure at which the request for information is made (see, by analogy, Commission v France, paragraphs 81 and 82). 63 None the less, public authorities should not be able to determine unilaterally the circumstances in which the confidentiality referred to in Article 4(2) of Directive 2003/4 can be invoked, which means in particular that national law must clearly establish the scope of the concept of ‘proceedings’ of public authorities referred to in that provision, which refers to the final stages of the decision-making process of public authorities. 64 Lastly and in any event, the requirement that the confidentiality of the proceedings of public authorities must be provided for by law applies without prejudice to the other obligations imposed by Article 4 of Directive 2003/4, in particular the obligation of the public authority concerned to balance the interests involved in each particular case (see, in that regard, Case C-266/09 Stichting Natuur en Milieu and Others [2010] ECR I-13119, paragraph 58). 65 In those conditions, the answer to question 2(a) and (b) is that indent (a) of the first subparagraph of Article 4(2) of Directive 2003/4 must be interpreted as meaning that the condition that the confidentiality of the proceedings of public authorities must be provided for by law can be regarded as fulfilled by the existence, in the national law of the Member State concerned, of a rule which provides, generally, that the confidentiality of the proceedings of public authorities is a ground for refusing access to environmental information held by those authorities, in so far as national law clearly defines the concept of ‘proceedings’, which is for the national court to determine.”