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Environmental information – meaning of “held” in regulation 3(2)(a) Environmental Information Regulations 2004
The appellant requested the University of Cambridge to provide information about the Fifth Assessment Report by the Intergovernmental Panel on Climate Change (IPCC), including copies of reports by Professor Wadhams (who was an employee of the University) as Review Editor for the IPCC, and other information relating to those reports. The University refused the request on the basis that it did not hold the information under the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004 (EIR), as Professor Wadhams’ work for the IPCC did not form part of his University duties. The Appellant complained to the Information Commissioner who decided that the request for the copies of the reports had been correctly dealt with under EIR and the other requests under FOIA, and rejected his complaint. The Commissioner decided that the information was not physically in the University’s possession but that, even if it was, it was not held to any extent for the University’s own purposes. The First-tier Tribunal (F tT) refused the Appellant’s appeal. It accepted the Commissioner’s classification of the requests under the EIR and FOIA and that the University did not hold the information under either legislation. The tribunal said that the requested information had been received, held or produced by Professor Wadhams as a private individual on behalf of the IPCC and that the precise location at which he carried out that role was immaterial. Mr Holland appealed to the Upper Tribunal.
Held, dismissing the appeal, that:
regulation 3(2)(a) EIR requires that the information is in the authority’s possession and produced or received by it. The Appellant’s submission that information was “produced or received by” the authority for the purpose of regulation 3(2)(a) if it was received by means of an electronic communication on an authority’s computer system would render that phrase superfluous (paragraph 45);
the correct approach to regulation 3(2)(a) requires a factual determination as to how the information came to be in the possession of the authority. The question is whether the information was produced or received by means which were unconnected with the authority, for example by an individual in their personal or other independent capacity, or whether it was produced or received by means which were connected with the authority, for example by someone acting in their professional capacity in relation to the authority (such as an employee of the authority). The connection must be such that it could be said that the production or receipt of the information is attributable to (“by”) the authority (paragraph 48);
that approach is consistent with the Aarhus Convention and EU Directive 2003/4/EC. These instruments clearly limit the scope of the right of access to information to that which is held by public authorities as defined. They do not provide for a general right to all environmental information regardless of the circumstances in which it arose or exists (paragraph 49);
Obiter, the F-tT correctly accepted the Commissioner’s conclusion (which was not challenged by the Appellant in the First-tier Tribunal proceedings) that FOIA applied to all the requests except the first. The other information related to administrative matters which were incidental to the production and handling of the reports and were not within any part of the definition of environmental information. In any event the First-tier Tribunal’s decision that the information was not held by the University would have applied to all parts of the request even if they had been addressed under the EIR (paragraphs 36 to 38).