Environmental Information

January 29th, 2018 by James Goudie KC

Regulation 12(5)(a) of the Environmental Information Regulations 2004 is a qualified exception from disclosure requirements on the ground of adverse effect upon public safety. In Natural England v Information Commissioner, EA/2017/0160, with respect to culling of badgers, the FTT, on 24 January 2018, stated:-

“66.    Natural England’s case as to the law was largely accepted by the other parties.  We also accept that: the term “public safety” in the EIRs should be read as importing the concept of “public security” referred to in the Aarhus Convention and the Directive.  We accept that, in principle, harm or an increased risk of harm to one person or their property could engage the exception and that there is no additional requirement for there to be widespread disorder and chaos.  We find, however, that the placement of “public safety” in a composite exception in the EIRs which also includes international relations, defence and national security must also be accorded some significance.

  1. We also accept that the “adverse effect” referred to in the EIRs may consist either of actual harm or an increased risk of harm, and that whether either concept engages public safety considerations is a question of fact and degree to be assessed by the Tribunal on the evidence and applying the standard of the balance of probabilities.”

“74.    We conclude that we are not satisfied on the balance of probabilities that disclosure of the withheld information at the relevant time would have caused direct or actual harm to public safety. In reaching that conclusion, we adopt Mr Knight’s approach to the assessment of risk versus consequences at paragraph 59 above and conclude that the incidences of harassment, whilst serious, are at the low end of future risk and that the incidences of damage to property, whilst somewhat higher in risk, are lower in consequence.

  1. We place no artificial gloss on the concept of “public safety/security”, but we do note its inclusion in a category of weighty criteria for allowing an exemption to the duty of disclosure and that it should be interpreted restrictively. In seeking to interpret it, we consider that the exception requires us to identify some consequences to the public over and above concerns about the safety of a limited class of individuals.  That public element could, in our view, comprise the national interest in enforcing the rule of law, but we do not consider that the exception is necessarily engaged where offences against individuals had been committed without wider consequences being identified.
  2. In all those circumstances, we are not satisfied that the cumulative effect of the evidence in this case is sufficient to place the effects of disclosure of the withheld information at a place on the spectrum of harm or risk of harm where it engages the exception.
  3. Those conclusions are sufficient for us to dispose of the appeal. However, if we are wrong and the exception is engaged, then we find that the public interest in disclosure outweighs the public interest in maintaining the exception.  In reaching this conclusion, we take into account our finding above that the evidence indicates a low-level risk to public safety from disclosure, consisting of a low risk of incidences of harassment and the higher risk of damage to badger traps, the consequences of which are unclear.  Weighed against that risk is the importance of public access to environmental information, and the public interest in holding an informed debate about a matter of considerable public interest and national environmental significance. …”

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