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Birkett v DEFRA

Country/Territory
United Kingdom
Type of court
National - higher court
Date
Dec 21, 2011
Source
UNEP, InforMEA
Court name
Court of Appeal
Seat of court
London
Judge
Carnwath, Llloyd and Sullivan.
Reference number
[2011] EWCA Civ 1606
Language
English
Subject
Air & atmosphere, Environment gen., Legal questions
Keyword
Air quality/air pollution Access-to-information
Abstract
The present case establishes that a public authority which has initially relied upon a particular exception when refusing to release the information can rely upon a different exception or exceptions in proceedings before the Information Commission and/or the First Tier Tribunal (General Regulatory Chamber) (Information Rights). The Court held that the challenge was premised on one important public interest—prompt disclosure—but there were other important public interests in play in the Directive 2003/4/EC on public access to information (OJ L41/26) including the public interests in the exception including privileged information and intellectual property rights. According to the Court, at the administrative review stage, which must be expeditious, the Commissioner has ample power to regulate the proceedings before him, for example by imposing a time limit for response. The Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009 ensures that any new exception, if it is to be relied upon, is identified at the outset of the appeal and within a relatively short time. Mr Birkett argued that it was necessary to interpret Council Directive 2003/4/EC, on public access to environmental information, which implements the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, and in turn EIR 2004, as preventing a public authority from relying on a new or different exemption after the internal review stage; otherwise the complainant would not have an effective remedy because they would not know the reasons for the public authority’s refusal of their request for information. The Court of Appeal rejected Mr Birkett’s argument. As a result of this decision, the general rule is that public authorities can rely on any exception/ exemption at any time under EIR 2004 or FoIA.
Full text
COU-159751.pdf