By Susan Wolf
A recent discussion on the JISCMail Bulletin Board about the use of the “internal communications” exception in the Environmental Information Regulations 2004 (EIR) resonated with me because it echoed a question that I have been asked several times during the Act Now EIR workshop. It also highlighted some of the difficulties that practitioners face when considering this exception.
The question concerned a public authority that had commissioned a report from a third-party, which it intended to use internally, to evaluate various alternative courses of action. The involvement of the third party was limited to the writing and submission of the report. The authority received an EIR request for the report and was considering the application of the internal communications exception Regulation 12(4)(e) of EIR.
Before exploring this exception, it is worth reminding ourselves of some key points, which should inform our thinking:
- The EIR 2004 implement EU Directive 2003/4/EC on Public Access to Environmental Information.
- This Directive fulfils the EU’s obligations under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice In Environmental Matters.
- Both of the above require that the grounds for refusal (the exceptions) must be interpreted in a restrictive way.
- All of the EIR exceptions are subject to the public interest test (EIR reg. 12(1)(b)).
- The EIR contains an explicit statement that public authorities must apply a presumption in favour of disclosure (EIR reg. 12(2)).
In some respects, this the internal communications exception is the most difficult of the EIR exceptions to explain, and that is in part because of the sheer brevity of it:
“(4) …a public authority may refuse to disclose information to the extent that—
(a) – (e) (not relevant)
(e) the request involves the disclosure of internal communications.”
If we take these words on face value, this exception can apply to any communication within a public authority. In this respect it sits oddly with the stated purpose of the EU Directive which is that public authorities must disseminate and make available environmental information to the widest possible extent. It also contrasts with the other more narrowly defined exceptions. Furthermore, because the exception is “class based”, there is no need to demonstrate that any harm will occur by disclosing the information (unlike the exceptions in Regulation 12(5) which are “prejudice based”). However, all EIR exceptions require us to apply the public interest test. This requires us to think about the purpose of the exception and what public interest it seeks to protect. More on this later.
What is a communication?
According to the ICO guidance the concept of a communication is broad and will encompass any information someone intends to communicate to others, or even places on file (including saving it on an electronic filing system) where others may consult it.
It will therefore include not only letters, memos, and emails, but also notes of meetings or any other documents if these are circulated or filed so that they are available to others.
Information recorded by an author solely for their own use is not likely to be regarded as a communication. The ICO also considers that any documents attached to a communication (for instance email attachments) will constitute communications, but that each should be considered separately in deciding whether it is “internal”. (It is also worth noting that the Aarhus Implementation Guide advises that the exception does not usually apply to factual material. The Guide is not legally binding, but the courts may use it as an aid to interpretation.)
What is “internal”?
The EU Directive does not define internal communications. However regulation 12(8) states:
“For the purposes of paragraph (4)(e), internal communications includes communications between government departments.”
So for example communications between DEFRA and DBERR are capable of falling within this exception, but the following will not:
- Communications between a government department and a non departmental public body. The First Tier Information Rights Tribunal (the Tribunal) has held that communications between DEFRA and the Marine Management Organisation, which was deliberately established as a non-departmental public body rather than as a departmental one, were not internal communications (DEFRA v Information Commissioner EA/2012/0105).
- Communications between a public authority and another public authority such as communications between a district and a county council (ICO Decision Notice FER0623080).
- Communications between a public authority and its wholly owned company because wholly owned companies have a separate legal identity. (ICO Guidance on Internal Communications (regulation 12(4)(e)).
- If a public authority forwards an internal communication to someone outside the authority, that communication will generally cease to be internal. (ICO Guidance on Internal communications (regulation 12(4)(e)).
Communications with consultants
If a public authority uses its own staff to produce a report and circulates that internally in order to evaluate alternative courses of action or inform policy decision making, then the exception is available, subject to the public interest test.
However, it is common practice amongst many public authorities to engage the services of external experts and consultants to produce reports which are used to enable internal deliberation and decision making. Can the public authority apply the internal communications exception to withhold such reports? As is nearly always the case, there is no definitive answer because the Tribunal has been reluctant to devise a standard test as to what amounts to an internal or external communication. The answer will largely depend upon the contextual and factual circumstances of the consultant’s engagement (see Secretary for State for Transport v Information Commissioner EA/2008/0052).
The extent to which an external consultant is “embedded” into an organisation will be a major factual and contextual consideration. In the above case Sir Rod Eddington (retired British Airways CEO) was commissioned to work with the Department of Transport.
He was not under a contact and nor was he paid. However, he had a designated office within the department and a business card with the departmental logo on it. He effectively led a team of civil servants and had confidential access to Ministers’ and senior civil servants’ views. Consequently the Tribunal decided that his draft report was an internal communication and could be withheld under the Regulation 12(4)(e) exception, subject to the public interest test. In another case (Salford City Council v Information Commissioner EA/2015/027), the Tribunal accepted that communications between Salford City Council and a company called Urban Vision were “internal.” On the facts the company had been formed as a joint venture between the Council, Capita and a construction company to carry out the Council’s planning, building control and highway functions and the Council communicated with it in the same way as its internal officers.
In contrast, in South Gloucestershire Council v Information Commissioner and Bovis Homes Ltd (EA/2009/0032) the Tribunal rejected the council’s arguments that a firm of external consultants was integrated into the council. It remarked that the facts in the Department of Transport case were “exceptional”. In this case the council had engaged the consultants in the ordinary way by means of a contract. Although the consultants worked closely with the council they were not “embedded” or “integrated” into the organisation. The consultants’ role was important because they brought an independent view from outside.
Returning to the bulletin board question that prompted this blog, the answer must be it depends on the nature of an organisation’s relationship with the author of the external report. If, like in the South Gloucestershire case, a public authority has commissioned an external consultant to prepare a report that provides an independent view on alternative courses of action, this is unlikely to benefit from the internal communication exception.
If a consultant is seconded to work within a public authority, as a team player contributing to internal discussion, then there is a possibility that communications may be classed as internal.
The public interest test
The internal communications exception can be used to withhold a very wide range of information. The major constraint on its use lies in the application of the public interest test. The ICO guidance makes it clear that public interest arguments should be focussed on the protection of internal deliberations and the decision-making processes. This is because the purpose of this exception is to protect a public authority’s need for a “private thinking space”. This provides a significant limit to the application of the exception. The ICO and the Tribunal will review the disputed “communications” to see whether they relate to the type of policy formulation or decision making that requires full and frank deliberation for which a safe space is required. Consequently the exception will not apply to communications that are primarily administrative in nature (see John Kuschnir Information Commissioner EA/2014/0030).
The timing of the request is also relevant when applying the public interest test.
The arguments in favour of withholding the internal communications are likely to be stronger at the early stages of policy formulation, (see The Department for Business, Enterprise and Regulatory Reform v Information Commissioner EA/2007/0072).
Many of the cases applying the internal communications exception have concerned central government departments and the need for a safe space in relation to policy formulation. Other types of organisations can use it too though. For example, Basildon Council successfully used the exception to withhold internal communications between two council departments about a planning application. The Tribunal accepted there was a clear need for robust internal debate within a safe space during the period of the planning application and for all issues to be explored without the full glare of publicity. (Rodney Cole v Information Commissioner, EA/2014/0059).
The internal communications exception under EIR is complex. It is important for practitioners to read the ICO guidance and also keep up to date with the latest Tribunal decisions.
Susan Wolf will be discussing this and other information law developments in our forthcoming webinars and workshops. If you are looking for a qualification in freedom of information, our FOI Practitioner Certificate is ideal.