It has been reported that the Information Commissioner is to make an application for Judicial Review of the decision by the Secretary of State for Transport to issue a certificate under section 53 of the Freedom of Information Act 2000 (‘the FOIA’) in respect of the Commissioner’s decision that the project assessment report pertaining to the HS2 project should be released under the Environmental Information Regulations 2004 (‘the EIRs’).
The Commissioner’s decision to make an application for judicial review is undoubtedly underpinned by the decision of the Court of Appeal in the case of R (Evans) v Attorney General and Information Commissioner in which the Court of Appeal decided that the use of the ‘veto’ under section 53 of the FOIA was unlawful in respect of information which is environmental in nature. I have written on the Evans decision here, and so don’t propose to repeat anything that is contained in that post.
In his decision dated 6 June 2013 the Commissioner found that the information contained within the report was Environmental Information, and consequentially it fell to be considered under the EIRs rather than the FOIA. The Cabinet Office, who were the public authority concerned, relied on Regulation 12(4)(e). The Commissioner found that the exemption was engaged, in that the information concerned amounted to internal communications. However, he decided that the public interest in maintaining the exemption did not outweigh the public interest in releasing the information. As a result the Information Commissioner ordered the Government to release the information contained within the report.
As the information amounts to Environmental Information, and following the decision of the Court of Appeal, the Secretary of State’s certificate under section 53 is unlawful. It should be noted that the Evans decision is subject to an appeal to the Supreme Court by the Attorney General. It is possible that the Supreme Court could over-turn the Court of Appeal’s decision in that case which states that the veto is unlawful in respect of Environmental Information.
Some interesting times ahead in the world of FOI.