IN THE COURT OF JUSTICE OF THE EUROPEAN UNION
CASE C-619/19
Land Baden-Württemberg
-and-
D.R.
WRITTEN OBSERVATIONS OF THE UNITED KINGDOM
The United Kingdom is represented by Simon Brandon of the Government Legal
Department, acting as Agent, and by Christopher Knight, Barrister.
Submitted by:
Simon Brandon
Christopher Knight
Agent for the xxxxxxxxxxxxxx
Government Legal Department
Barrister
Room
Service may also be made by e-curia or email
Email:
28 November 2019
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INTRODUCTION & SUMMARY
1.
Pursuant to Article 23 of the Protocol on the Statute of the Court of Justice of
the European Union, the United Kingdom submits the fol owing written
observations on the question referred for a preliminary ruling under Article 267
of the Treaty on the Functioning of the European Union (“TFEU”) by the
Bundesverwaltungsgericht (“the Referring Court”) in its Order lodged on 19
August 2019 (“the Order for Reference”).
2.
The Referring Court’s questions concern the application of Directive 2003/4/EC
on public access to environmental information and repealing Council Directive
90/313/EC (“the Directive”), and the interpretation of the exception from the right
of access to environmental information provided for in Article 4(1)(e) where the
“
request concerns internal communications, taking into account the public
interest served by disclosure”.
3.
In summary, the United Kingdom submits that:
(1) The term “
internal communications” in Article 4(1)(e) of the Directive is to be
interpreted in a fact and context sensitive manner, which secures the
application of the exception to information which forms part of the space for
deliberation of the public authority and which respects the differences of
approach to public administration in the Member States.
(2) Article 4(1)(e) of the Directive is not to be interpreted as being temporal y
limited, but rather the progression of any decision or policy-making to which
the requested information relates wil be a material factor in the balance of
the public interests the public authority is required to assess.
THE PROVISIONS OF THE DIRECTIVE AND RELATED LEGISLATION
4.
The Directive contains the legislative scheme governing access to, and
dissemination of, environmental information held by the public authorities of the
Member States. It is intended to give effect to, and be consistent with, the
provisions of the UN/ECE Convention on Access to Information, Public
3
Participation in Decision-Making and Access to Justice in Environmental
Matters (“the Aarhus Convention”): see recital (5). The European Community
acceded to the Aarhus Convention in its own right by signing it on 25 June 1998
and subsequently approved that access by Decision 2005/370. The Aarhus
Convention accordingly forms an integral part of the Union legal order: Case C-
240/09
Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia
Slovenskej republiky (EU:C:2011:125), paragraph 30. Account is to be taken of
the wording and aim of the Aarhus Convention when interpreting the Directive:
Case C-279/12
Fish Legal v Information Commissioner (EU:C:2013:853),
paragraph 37.
5.
The objectives of the Directive are set out in Article 1:
“
The objectives of this Directive are:
(a) to guarantee the right of access to environmental information held by or for
public authorities and to set out the basic terms and conditions of, and
practical arrangements for, its exercise; and
(b) to ensure that, as a matter of course, environmental information is
progressively made available and disseminated to the public in order to
achieve the widest possible systematic availability and dissemination to the
public of environmental information. To this end the use, in particular, of
computer telecommunication and/or electronic technology, where available,
shal be promoted.”
6.
Article 3(1) creates the obligation on a public authority of a Member State to
make available environmental information held by or for them to any applicant
upon request. The obligation to make the information available is expressly
subject to Article 4: Article 3(2).
7.
Article 4 of the Directive is headed “
Exceptions”. It is convenient to set out the
provision in ful :
“
1. Member States may provide for a request for environmental information to
be refused if:
(a) the information requested is not held by or for the public authority to which
the request is addressed. In such a case, where that public authority is aware
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that the information is held by or for another public authority, it shal , as soon
as possible, transfer the request to that other authority and inform the
applicant accordingly or inform the applicant of the public authority to which it
believes it is possible to apply for the information requested;
(b) the request is manifestly unreasonable;
(c) the request is formulated in too general a manner, taking into account
Article 3(3);
(d) the request concerns material in the course of completion or unfinished
documents or data;
(e) the request concerns internal communications, taking into account the
public interest served by disclosure.
Where a request is refused on the basis that it concerns material in the course
of completion, the public authority shal state the name of the authority
preparing the material and the estimated time needed for completion.
2. Member States may provide for a request for environmental information to be
refused if disclosure of the information would adversely affect:
(a) the confidentiality of the proceedings of public authorities, where such
confidentiality is provided for by law;
(b) international relations, public security or national defence;
(c) the course of justice, the ability of any person to receive a fair trial or the
ability of a public authority to conduct an enquiry of a criminal or disciplinary
nature;
(d) the confidentiality of commercial or industrial information where such
confidentiality is provided for by national or Community law to protect a
legitimate economic interest, including the public interest in maintaining
statistical confidentiality and tax secrecy;
(e) intel ectual property rights;
(f) the confidentiality of personal data and/or files relating to a natural person
where that person has not consented to the disclosure of the information to
the public, where such confidentiality is provided for by national or Community
law;
(g) the interests or protection of any person who supplied the information
requested on a voluntary basis without being under, or capable of being put
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under, a legal obligation to do so, unless that person has consented to the
release of the information concerned;
(h) the protection of the environment to which such information relates, such
as the location of rare species.
The grounds for refusal mentioned in paragraphs 1 and 2 shal be interpreted in
a restrictive way, taking into account for the particular case the public interest
served by disclosure. In every particular case, the public interest served by
disclosure shal be weighed against the interest served by the refusal. Member
States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a
request to be refused where the request relates to information on emissions into
the environment.
Within this framework, and for the purposes of the application of subparagraph
(f), Member States shal ensure that the requirements of Directive 95/46/EC of
the European Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of personal data and on
the free movement of such data are complied with.
3. Where a Member State provides for exceptions, it may draw up a publicly
accessible list of criteria on the basis of which the authority concerned may
decide how to handle requests.
4. Environmental information held by or for public authorities which has been
requested by an applicant shal be made available in part where it is possible to
separate out any information fal ing within the scope of paragraphs 1(d) and (e)
or 2 from the rest of the information requested.
5. A refusal to make available al or part of the information requested shal be
notified to the applicant in writing or electronical y, if the request was in writing
or if the applicant so requests, within the time limits referred to in Article 3(2)(a)
or, as the case may be, (b). The notification shal state the reasons for the
refusal and include information on the review procedure provided for in
accordance with Article 6.”
8.
Recital (16) provides:
“
The right to information means that the disclosure of information should be the
general rule and that public authorities should be permitted to refuse a request
for environmental information in specific and clearly defined cases. Grounds for
refusal should be interpreted in a restrictive way, whereby the public interest
served by disclosure should be weighed against the interest served by the
refusal. The reasons for a refusal should be provided to the applicant within the
time limit laid down in this Directive.”
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9.
These provisions of the Directive material y replicate those of the Aarhus
Convention itself. In particular, Article 4 of the Aarhus Convention material y
provides:
“
3. A request for environmental information may be refused if:
(a) The public authority to which the request is addressed does not hold the
environmental information requested;
(b) The request is manifestly unreasonable or formulated in too general a
manner; or
(c) The request concerns material in the course of completion or concerns
internal communications of public authorities where such an exemption is
provided for in national law or customary practice, taking into account the
public interest served by disclosure.
4. A request for environmental information may be refused if the disclosure
would adversely affect:
(a) The confidentiality of the proceedings of public authorities, where such
confidentiality is provided for under national law;
(b) International relations, national defence or public security;
(c) The course of justice, the ability of a person to receive a fair trial or the
ability of a public authority to conduct an enquiry of a criminal or disciplinary
nature;
(d) The confidentiality of commercial and industrial information, where such
confidentiality is protected by law in order to protect a legitimate economic
interest. Within this framework, information on emissions which is relevant for
the protection of the environment shal be disclosed;
(e) Intel ectual property rights;
(f) The confidentiality of personal data and/or files relating to a natural person
where that person has not consented to the disclosure of the information to
the public, where such confidentiality is provided for in national law;
(g) The interests of a third party which has supplied the information requested
without that party being under or capable of being put under a legal obligation
to do so, and where that party does not consent to the release of the material;
or
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(h) The environment to which the information relates, such as the breeding
sites of rare species.
The aforementioned grounds for refusal shal be interpreted in a restrictive way,
taking into account the public interest served by disclosure and taking into
account whether the information requested relates to emissions into the
environment.
…
6. Each Party shal ensure that, if information exempted from disclosure under
paragraphs 3 (c) and 4 above can be separated out without prejudice to the
confidentiality of the information exempted, public authorities make available the
remainder of the environmental information that has been requested.”
10. It wil be apparent that Article 4(1)(e) of the Directive has a direct textual basis in
Article 4(3)(c) of the Aarhus Convention. However, the second ident of Article
4(2) of the Directive goes beyond the terms of Article 4(4) of the Aarhus
Convention in applying the restrictive interpretation principle to the exceptions in
Article 4(1) as wel as Article 4(2) of the Directive.
11. The UN/ECE publishes ‘The Aarhus Convention: An Implementation Guide’ (2nd
edition, June 2014) (“the Implementation Guide”). The established approach of
this Court is that the Implementation Guide is to be regarded as an explanatory
document, capable of being taken into consideration if appropriate among other
relevant material for the purpose of interpreting the Aarhus Convention, but that
the observations in the Implementation Guide have no binding force and do not
have the normative effect of the provisions of the Aarhus Convention: see, e.g.,
Case C-182/10
Solvay v Region Wal onne (EU:C:2012:82), paragraph 27 and
Fish Legal, paragraph 38.
12. The extent of the assistance provided by the Guide on the “
internal
communications” exception is at p.85, which states:
“
The second part of this exception concerns “internal communications”. Again,
Parties may wish to clearly define “internal communications” in their national
law. In some countries, the internal communications exception is intended to
protect the personal opinions of government staff. It does not usual y apply to
factual materials even when they are stil in preliminary or draft form. Opinions
or statements expressed by public authorities acting as statutory consultees
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during a decision-making process cannot be considered as “internal
communications”. Neither can studies commissioned by public authorities from
related, but independent, entities. Moreover, once particular information has
been disclosed by the public authority to a third party, it cannot be claimed to be
an “internal communication”.”
13. The Directive is implemented in the United Kingdom, in material y the same
terms, by the Environmental Information Regulations 2004 (SI 2004/3391) and
the Environmental Information (Scotland) Regulations (SI 2004/520). There has
developed an extensive body of domestic case law in the United Kingdom on
the meaning and application of those Regulations and the Directive, through the
regulatory oversight decisions of the Information Commissioner and Scottish
Information Commissioner, and the right of appeal from those decisions to
specialist tribunals.
14. Some analogous assistance may be provided by the other information access
regime created by Union law: that which applies to information held by the
Union institutions themselves. Regulation (EC) 1049/2001 creates, in Article
4(3), a detailed exception for internal documents:
“
3. Access to a document, drawn up by an institution for internal use or received
by an institution, which relates to a matter where the decision has not been
taken by the institution, shal be refused if disclosure of the document would
seriously undermine the institution's decision-making process, unless there is
an overriding public interest in disclosure.
Access to a document containing opinions for internal use as part of
deliberations and preliminary consultations within the institution concerned shal
be refused even after the decision has been taken if disclosure of the document
would seriously undermine the institution's decision-making process, unless
there is an overriding public interest in disclosure.”
15. Regulation 1049/2001 was not enacted to give effect to the Aarhus Convention,
and it is not restricted to environmental information. However, where a request
for environmental information is made to a Union institution, Article 6(1) of
Regulation (EC) 1367/2006 requires that Article 4(3) be “
interpreted in a
restrictive way, taking into account the public interest served by disclosure and
whether the information requested relates to emissions into the environment”.
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THE PRINCIPLES ESTABLISHED BY THE CASE LAW OF THE COURT
16. Certain principles applicable to the interpretation and application of the Directive
are wel -established in the jurisprudence of this Court:
(1) The right of access applies only to the extent guaranteed by the Directive,
having regard to the various definitions, limitations and exceptions within it:
Fish Legal, paragraph 39 and Case C-316/01
Glawischnig v Bundesminister
fur soziale Sicherheit and Generationen (EU:C:2003:343).
(2) The scope of the derogations and exceptions laid down by the Directive
must be determined in the light of the aims pursued by the Directive: Case
C-204/09
Flachglas Torgau GmbH v Bundesrepublik Deutschland
(EU:C:2012:71), paragraph 38.
(3) The aims of the Directive may be primarily derived from Article 1, but they
must be read by reference to the Directive as a whole, including its
derogations and exceptions:
Flachglas Torgau.
(4) The scope of the exceptions serves the aims pursued where they are
construed in a restrictive way, and taking into account the public interest
balancing test: recital (16), Article 4(2).
(5) When weighing the public interest served by disclosure against the public
interest served by the application of exceptions, the public authority may
evaluate cumulatively the grounds for refusal to disclose, given that the
interests may sometimes overlap in the same situation or the same
circumstances: Case C-71/10
Office of Communications v Information
Commissioner (EU:C:2011:525), paragraphs 28 and 30.
(6) The balancing of the respective public interests must always involve a
specific examination of each individual case: Case C-266/09
Stichting
Natuur en Milieu and Others v Col ege voor de toelating van
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gewasbeschermingsmiddelen en biociden (EU:C:2010:779), paragraphs 57-
58.
(7) The right of access crystal ises only at the point when the public authority
makes a decision in relation to the request. It is at that point that the
assessment must be made as to whether any exception applies, and what
the balance of the public interests favours:
Stichting Natuur, paragraph 34.
17. The United Kingdom makes its submissions in the light of these principles.
THE FIRST QUESTION REFERRED
18. The Referring Court asks in its First Question whether Article 4(1)(e) of the
Directive is to be interpreted as covering al communications which do not leave
the internal sphere of a public authority to which the Directive applies.
19. It is not clear to the United Kingdom from the Order for Reference how the First
Question arises on the facts of the case before the Referring Court. Paragraph
2 of the Order for Reference explains the information in issue as being
information held by the executive committee of the public authority relating to a
committee of inquiry, and memoranda of the authority relating to a conciliation
procedure. There is no suggestion that any of the information, or the documents
containing the information, have been provided to any person external to the
public authority to whom the request was made. Rather, paragraph 3 of the
Order for Reference indicates that Article 4(1)(e) was held not to apply because
of a temporal limitation – the subject of the Second and Third Questions,
addressed below.
20. The Referring Court raises certain issues concerning scope of Article 4(1)(e) in
paragraphs 13-14: whether a communication which has not at the time of the
request left the internal sphere of the authority but is intended to do so is
covered, and whether there must be a certain quality to the information to be a
“
communication”. It is not explained in the Order for Reference how these
questions relate to the particular facts of the case. In any event, the first of
these issues is plainly wrong. If at the time the public authority responds to the
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request the information remains ‘internal’ then the exception applies. To apply a
possible future status over that of the relevant point in time would be contrary to
Stichting Natuur (above).
21. The purpose of the exception for “
internal communications”, in both the Aarhus
Convention and the Directive, is to provide a measure of protection to public
authorities for the ful range of information created and processed in modern
government. That range wil cover policy formulation, decision-making,
operational steps, expressions of opinion by employees, col ation of input
provided by third parties and a variety of other contexts. The very broad array of
public authorities who hold environmental information across an infinite number
of contexts, structured and operated in different ways in the different Member
States (and Parties to the Convention, including the Union), is indicative of the
intended breadth of the exception.
22. As the Court accepted in the context of the analogous Article 4(3) of Regulation
1049/2001 in Case C-57/16 P,
ClientEarth v Commission (EU:C:2018:660) at
paragraph 109, the public authority “
must be able to enjoy a space for
deliberation in order to be able to decide as to the policy choices to be made
and the potential proposals to be submitted”.
23. It is imperative that Article 4(1)(e) be interpreted and applied in a manner which
respects and reflects the vast array of different ways in which public authorities
across the Member States – and within Member States – carry out their public
functions. There is a close analogy to the functional interpretation of Article 2(2)
adopted by the Court in
Flachglas Torgau at paragraphs 49-50 in relation to the
legislative process. There the Court recognised that the legislative process “
is
likely to differ significantly between Member States”;
a fortiori the administrative
functions of public authorities.
24. In this context, a functional interpretation would respect the fact that different
public authorities in different contexts may be reliant on the assistance of
external expert input, particularly in the formulation and development of policy.
The question should be whether the exception is required to protect the
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deliberative space provided for public authorities. The application of that test wil
be inherently fact and context specific, to be determined by the public authority
and then by whichever court or tribunal the State provides access to as required
by Article 6 of the Directive.
25. There are limits to the scope of Article 4(1)(e). The Implementation Guide is
correct when it suggests that a response provided by a public authority to a
statutory consultation – i.e. provided to another body – would not be covered by
the exception; it is no longer internal in a relevant sense. Similarly, there must
be some element of provision as between individuals within the public authority
for the information to be contained within a “
communication”, although this may
be in a wide variety of forms (e.g. file notes, memoranda, reports, emails).
26. The Implementation Guide should not, however, be fol owed in its entirety. The
Court has repeatedly recognised (e.g.
Flachglas Torgau, paragraph 36) that the
Guide is not binding and has not accepted its approach. That caution is al the
more justified where the Guide itself expressly recognises that the term “
internal
communications” is undefined, and could be the subject of definition by Parties
to the Aarhus Convention. There is, accordingly, a margin of discretion afforded
as to precisely how to approach the exception. It should be recal ed that in the
Aarhus Convention this exception is not subject to the requirement to interpret it
in a restrictive way: it applies only to those set out in Article 4(4).
27. The United Kingdom’s fact and context specific approach to Article 4(1)(e) –
including as adopted in its extensive domestic case law – accepts, for example,
that the exception can apply to communications between a public authority and
an external advisor, assisting the authority at the authority’s request. In
principle, where those communications form part of the deliberative space they
should be protected (subject always to the public interest balance). Whether the
exception wil extend to an external advisor may depend on factors such as the
terms of any agreement with the authority, where the advisor works and the
extent to which staff of the authority assist the advisor. In essence, where an
external party is embedded in the internal deliberative space, the exception can
and should remain applicable. An artificial ring-fence drawn (as the
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Implementation Guide seeks to do) around the email servers and filing cabinets
of a public authority would fail to reflect the multiplicity of ways in which public
authorities carry out their functions, and seek to draw on the expertise of others
to achieve the best outcome for the public they serve.
28. To take a practical example, many public authorities share resources to achieve
efficiencies and financial savings. These may be IT systems, human resources
support, legal services or physical premises. In some cases, the use of shared
resources wil be in part to achieve a reduction in adverse environmental
impact, such as by reducing the carbon or emissions footprint of the public
sector. It cannot have been the contemplation of the Parties to the Aarhus
Convention, or the Union legislature, that in the case of (say) a shared IT
system subject to appropriate permissions and access controls none of the
information can be said to be internal communications. Yet that would be the
outcome of an approach to interpretation which emphasises a restrictive
interpretation of the exception over a recognition of how government and public
administration practical y functions.
29. An overly narrow interpretation wil undermine the recognition in the Preamble
to the Aarhus Convention of the importance of the roles of “
non-governmental
organisations and the private sector” in environmental protection. The use and
consultation of such advisors, in order to assist informed and expert
deliberation, improves environmental decision and policy-making by public
authorities and serves the aims of the legislation. The inability to protect that
deliberative space in appropriate cases wil reduce the likelihood of public
authorities gaining the assistance and advice integral to that deliberation. The
approach of the Implementation Guide would undermine the purpose of the
Aarhus Convention and the Directive in prescribing necessary limits to the
scope of the right of access to environmental information. That is entirely proper
and unsurprising. No information access regime of which the United Kingdom is
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aware provides an absolute right without a variety of exceptions. The
exceptions are as intrinsic a part of the legislative scheme as the right.1
30. Moreover, any reliance on Article 4(1)(e) is subject to a very significant, fact-
sensitive, control mechanism: the application of the public interest balance. The
public authority would always be obliged to balance the public interest in
applying the exception against the public interest in disclosure, having regard to
the specific concerns relied on to justify refusing to disclose and taking into
account al relevant factors. In
ClientEarth, at paragraph 111, the Court
emphasised that the application of an exception would always require careful
consideration of the concerns advanced by the public authority depending “
on
factors such as the state of completion of the document in question and the
precise stage of the decision-making process in question at the time when
access to that document is refused, the specific context in which that process
takes place, and the issues stil to be discussed internal y by the [authority]
concerned”. It is also subject to the duty in Article 4(4) to separate out
information which can be disclosed from that which cannot.
31. The United Kingdom submits that the term “
internal communications” in Article
4(1)(e) of the Directive is to be interpreted in a fact and context sensitive
manner, which secures the application of the exception to information which
forms part of the space for deliberation of the public authority and which
respects the differences of approach to public administration in the Member
States.
THE SECOND AND THIRD QUESTIONS REFERRED
32. The Referring Court asks in its Second Question whether the temporal scope of
the exception in Article 4(1)(e) of the Directive is unlimited. If it is not unlimited,
it asks in the Third Question, in effect, whether the exception in Article 4(1)(e)
ceases to apply when the public authority has taken a decision or completed
any other administrative process.
1 In some cases, they ensure the protection of more fundamental rights, such as the right to the protection of
personal data: see the third sub-‐paragraph of Article 4(2) of the Directive.
15
33. The United Kingdom submits that the answer to the Second Question is that
Article 4(1)(e) is not temporal y limited. Rather, the stage reached in the
decision-making process will be a material factor in the public interest balance.
Accordingly, the Third Question does not fal to be answered.
34. The ordinary meaning of the language used by the Union legislator in Article
4(1)(e) imports no temporal limitation so long as the “
communications”
requested remain “
internal” to the public authority at the time of the request.
Had it been intended that the exception cease to be available at any particular
point in time, the legislation could have specified such an approach.
35. None of the exceptions in Article 4(1) or 4(2) are directly temporal y limited. For
most of the exceptions, it is rather the case that the pre-conditions for their
application may cease to exist such that a further request could not rely upon
the exception. There are, accordingly, likely to be many instances in which a
later request for the same information wil be made at a time when the
confidentiality of the proceedings no longer applies (Article 4(2)(a)), or the
information is no longer commercial y confidential (Article 4(2)(d)), or a trial
process has concluded so that its fairness could not be adversely affected
(Article 4(2)(c)), or the document containing the information has been finished
(Article 4(1)(d)). None of these are temporal limitations. In the same way, the
pre-condition for the application of Article 4(1)(e) wil not be met once a public
authority’s communication is no longer internal in the sense discussed under
the First Question. An appropriately rigorous approach to the pre-conditions set
out in the legislative language secures the obligation in Article 4(2) to apply a
restrictive interpretation.
36. Were the exception to be interpreted as applicable only to a limited period of
time, it would be incumbent on the Court in order to secure legal certainty, to set
out with absolute clarity what the limitation is. None can be derived from the text
of the Directive. The identification of such a limit is extremely difficult. As the
Referring Court notes in its observations on the Third Question, not al “
internal
communications” wil concern a decision or policy-making process which comes
to an end. Nor is it the case that such processes always have a definite
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endpoint; even after a policy has been formulated, it be may returned to, or
there may be deliberations as to the subsequent stages of how to implement
and operate the policy. The way government operates wil differ across Member
States, and between public authorities within each State. It is not practically
possible to construct a limitation test which wil apply across the ful range of
information to which the exception applies. That is a very strong indication that
no such limitation is appropriate.
37. In a similar manner, Article 5(1)(e) of Regulation 2016/679/EU (the General
Data Protection Regulation) does not purport to set an absolute period of
storage limitation which would apply to al processing of personal data. Such a
blanket rule would be ineffective and inappropriate.
38. The absence of any intention on the part of the Union legislator to impose a
temporal limitation is further indicated by the express refusal to do in Article 4(3)
of Regulation 1049/2001, even after the decision to which the “
deliberations and
preliminary consultations” relates has been taken. It wil also be noted that the
scope of Article 4(3) of the Regulation is different to Article 4(1)(e) of the
Directive: the terms of the exception are directly focussed on the Union
institution’s decision-making process. No such limitation applies in the Directive,
to which a temporal limitation would be even harder to frame.
39. At no point in time is reliance on Article 4(1)(e) absolute. As set out above, the
public authority would always be obliged to balance the public interest in
applying the exception against the public interest in disclosure, having regard to
the specific concerns relied on to justify refusing to disclose. The passage of
time, and the extent to which a decision has been taken, wil be highly material
factors: both as to the degree to which disclosure would give rise to specific
concerns, and as to the importance of public access to the information in
question.2 See too:
ClientEarth, paragraph 111. The public interest balance is
the ever-present control mechanism. It secures compliance with effective
proportionality.
2 This is the nuanced and fact-‐sensitive approach which has been adopted in the United Kingdom: see, e.g.,
Amin v Information Commissioner & Department for Energy and Climate Change [2015] UKUT 527 (AAC).
17
40. In contrast, were an absolute temporal limit to be imposed it would have the
effect of precluding reliance on an exception. That might oblige the public
authority to disclose information which has no public interest whatsoever, or
which in no way serves the aims of the Directive, or which was positively and
clearly contrary to the public interest. The balancing exercise would be
unavailable.
41. The United Kingdom notes that a different approach was adopted by the Court
in
Flachglas Torgau. That case concerned the scope of the ability afforded to
Member States in Article 2(2) of the Directive to provide for a further absolute
derogation from the right to request information for authorities acting in a
legislative capacity. The Court held at paragraphs 55-56 that the derogation
could not extend beyond the end of the legislative process, noting that the
exceptions in Article 4 would stil be available: paragraph 57. That context does
not warrant the imposition of a temporal limit on Article 4(1)(e). The context of
this Order for Reference does not involve an absolute derogation, does not
involve an absence of legislative language and does involve the application of
the public interest test.
42. No material assistance is provided by the Aarhus Convention itself, or the
Implementation Guide. That Articles 4(1)(d) and (e) of the Directive are
contained in the single Article 4(3)(c) of the Convention is merely a drafting
preference. Article 4(3)(c) of the Aarhus Convention does not apply to a request
which “
concerns material in the course of completion or concerns internal
communications in the course of a decision-making process”; it simply refers to
“
material in the course of completion” and separately “
internal communications”.
No linguistic or logical limit can be read from one to the other.
43. Contrary to the suggestion in paragraph 27 of the Order for Reference, it is not
the case that an unlimited scope given to Article 4(1)(e) would cut across the
application of Article 4(2)(a). They apply in different circumstances, even if they
may both be applicable to the same information in some cases. The
confidentiality required for Article 4(2)(a) must be provided for by law, and wil
clearly not extend to many contexts of internal communications. There must be
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also be an adverse effect on the confidentiality of the proceedings if disclosure
occurs. Similarly, public authorities may share information between each other
outside of the deliberative space, such that the communications are not internal,
on a confidential basis such that Article 4(2)(a) is engaged when Article 4(1)(e)
is not. In contrast, Article 4(1)(e) applies to internal communications: the focus
is on the public authorities’ deliberative space, rather than on the more technical
question of confidentiality. An adverse effect as a result of disclosure is not
required; the class of the information is sufficient to engage the exception and
the degree of harm caused by disclosure is addressed in the public interest
balance. To the extent that there is overlap between the two, this was
envisaged and accepted by the Court in
Ofcom.
44. The United Kingdom submits that the temporal application of Article 4(1)(e) of
the Directive is unlimited, but that the progression of any decision or policy-
making to which the requested information relates, along with the age of the
information and other relevant contextual matters, wil be material to the
balance of the public interests the public authority is required to assess.
THE UNITED KINGDOM’S PROPOSED ANSWERS TO THE QUESTIONS
45. The United Kingdom accordingly suggests the fol owing answers to the
questions posed by the Order for Reference:
Question 1
The term “
internal communications” in Article 4(1)(e) of Directive 2003/4/EC is
to be interpreted in a fact and context sensitive manner, which secures the
application of the exception to information which forms part of the space for
deliberation of the public authority and which respects the differences of
approach to public administration in the Member States.
Question 2
Article 4(1)(e) of Directive 2003/4/EC is not to be interpreted as being
temporal y limited, but rather the progression of any decision or policy-making to
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which the requested information relates, along with the age of the information
and other relevant contextual matters, will be material to the balance of the
public interests the public authority is required to assess.
Question 3
This question does not arise.
Submitted by:
Simon Brandon
Christopher Knight
Agent for the xxxxxxxxxxxxxx
Barrister
28 November 2019
