Harrison Grant acted for Greenpeace UK in their successful cross-appeal before the information tribunal. The tribunal concluded that the Environment Agency is a body external of government and so information disclosed to them by government departments falls outside of the "internal communications" exception in the Environmental Information Regulations. This means that the Cabinet Office is required to release sections of a secret report on fracking.
The case has potentially broad ramifications as it confirms that information shared with regulatory bodies like the Environment Agency will not be internal communications for the purposes of the Environmental Information Regulations, broadening the availability of documents which are shared with multiple public bodies.
This case stemmed from the Cabinet Office's refusal of Zachary Boren of Unearthed News' (Greenpeace’s “editorially-independent” journalism website) request for disclosure of the Prime Minister's Implementation Unit (PMIU) 2016 report into fracking.
Greenpeace complained to the ICO about the Cabinet's decision to refuse to disclose the PMIU report. The ICO upheld the complain, but based on inaccurate information from the Cabinet Office, the ICO decided that the whole of the report was an internal communication under Reg.12(4)(e) of the Environmental Information Regulations (2004) (EIR) but that the public interest favoured disclosure of the Background and the Executive Summary sections of the report.
The Cabinet Office appealed to the first tier Tribunal. During the appeal process they revealed that the report had in fact been shared more widely, including with the Environment Agency (EA) and the Health and Safety Executive (HSE). As a result, Harrison Grant, on behalf of Greenpeace, submitted a cross-appeal arguing that the internal communications exception could not apply since the report had been shared externally of government.
The tribunal’s decision of 28 October 2019 found in Greenpeace’s favour in most key respects:
- The tribunal agreed that to the extent that the report was shared with the EA it was not an internal communication and therefore must be disclosed unless another exception applied (because of the finding regarding the EA, there was no need for the tribunal to consider the status of the HSE). The implications of this finding are broad because if the tribunal had reached the opposite conclusion it could have meant that communications between government and the EA were exempt from disclosure, severely undermining the environmental information regime (paras.40-49 of the decision).
- The tribunal accepted Harrison Grant's submissions on the public interest arguments in favour of disclosure (paras.51-55), finding that there was “a very weighty public interest in the public having access to the report”. In particular:
- "There can be no doubt that fracking was (and remains) extremely controversial and that those who oppose it do so for legitimate reasons" (para.52);
- "The report was meant to identify barriers and challenges to the progress of the fracking industry: it was in the public interest for the public to have an insight into the problems as perceived by government; in this connection we noted an unfortunate tendency on the part of the Cabinet Office to be content for positive information about the fracking industry to be released but anxious to withhold more negative information; we consider it was in the public interest for a full, rounded, picture to be disclosed" (para.54(b));
- “It is no secret that the government supported the development of the industry and the report was designed to address how the government could help it to develop; it was in our view in the public interest that the public should know how far officials were suggesting government might go in doing so” (para.54(3)); and
- “there was (and remains) considerable confusion about the predictions as to where the fracking industry would be in the forthcoming years; it is clear that the figures in the report were not consistent with those which were being relied on by the industry and it was in the public interest that the public should see the authors’ considered view on the matter based on what they were being told by “industry players” and experts in 2016.” (para.54(4))
- The tribunal also agreed that various public interest arguments against disclosure were not as strong:
- any potential “chilling effect” caused by disclosure was minimal (para.59)
- companies consulted when preparing the report “would clearly have been sophisticated and hard-headed and well aware of the existence of FOIA and EIR and the fact that they could never be guaranteed absolute confidentiality. Further, as Greenpeace maintain, the likelihood is that those consulted by government will continue to provide information if it is in their interests to do so.” (para.61)
- the companies in fact did not face external competition because the 14th licensing round had taken place when all key shale areas were licensed (para.62).
Harrison Grant further argued that the public interest test should be considered at the date of the appeal rather than the date of the final refusal by the CO. Although the tribunal recognised there may be legitimate arguments in favour of this approach, they did not consider the matter in detail because of higher authority to the contrary.
Exceptions 12(5)(e) and (f) of the EIR were found to apply to some parts of the report. Some paragraphs were considered to contain specific plans and intentions of the companies that if disclosed could cause commercial damage.
Based on its findings, the tribunal have drafted a schedule detailing what information must be disclosed. The CO has until 25 November 2019 to disclose the information or appeal.
Alice Goodenough represented Greenpeace before the Information Tribunal.
The decision of the first-tier tribunal can be found at: http://informationrights.decisions.tribunals.gov.uk//DBFiles/Decision/i2537/Cabinet%20Office%20EA.2018.0270%20(08.11.19).pdf