Secretary of State entering into agreement for construction of road – Objectors requesting disclosure of agreement – Request being refused – Application for judicial review of decision to refuse disclosure – Whether agreement confidential – Environmental Protection Act 1990 – Application allowed
The proposed Birmingham Northern Relief Road (BNRR) was a new 44km motorway around the north and east of the West Midlands conurbation, which, if constructed, would provide an alternative route to the heavily congested section of the M6 between junctions 4 and 11. It was proposed to be designed, built, financed and operated by the second respondent, Midland Expressway Ltd (MEL) pursuant to an agreement (the agreement) with the Secretary of State. Under the agreement MEL would recover its costs by charging tolls to users. A concession statement about the terms of the agreement was published on June 15 1993.
After a public inquiry the inspector recommended that the necessary orders for the BNRR be made. By a decision letter dated July 23 1997 the Secretary of State proposed to make the relevant orders. The applicants, objectors to the BNRR, were concerned that the decision of the Secretary of State might have been influenced by the prospect of having to pay compensation to MEL under the terms of the agreement if it was not proceeded with, and asked for full details of the agreement. The request was made under the Environmental Information Regulations 1992 (No 3240) adopted pursuant to Council Directive 90/313/EEC. The Secretary of State claimed that the agreement was confidential under the 1992 regulations and, therefore, it had no authority to disclose the agreement.
By regulation 4(1) “Nothing in these regulations shall . . . (b) authorise or require the disclosure of any information which must be . . . treated [as confidential] . . . (2) information is to be capable of being treated as confidential if . . . it is (e) information relating to matters to which any commercial or industrial confidentiality attaches . . .”. By regulation 4(3) “information must be treated as confidential if . . . (a) it is capable of being so treated and its disclosure in response to [a] request would contravene any statutory provision or rule of law or would involve any breach of agreement”. The applicants sought judicial review of the Secretary of State’s decision not to allow their request for disclosure of the agreement.
Held The application was allowed.
1. The issue of whether the information related to the environment and whether any of the exceptions in regulation 4 applied were all factual questions to be determined in an objective manner. Accordingly, the court was not limited to reviewing the Secretary of State’s view of the facts to see if his view was Wednesbury unreasonable.
2. The purpose of article 3(4) of the Directive was to enable an individual who was refused information to ascertain whether the refusal was well founded in fact and law or whether it was susceptible to challenge. That was not fulfilled by the bare assertion that the agreement was confidential under a particular regulation.
3. The agreement as a whole did not fall within regulation 4(2)(e) as a “commercial document” containing financial obligations, since much of the information within it did not relate to matters to which commercial confidentiality attached. However, the compensation provision was information to which such commercial confidentiality attached and which, accordingly, fell within the regulation.
4. The disclosure of those parts of the agreement which were capable of being treated as confidential would not breach any express or implied agreement, and, accordingly, regulation 4(3)(a) did not apply. Therefore the parts of the agreement which did not fall within regulation 4(2)(e) were to be disclosed to the applicants. Accordingly, the Secretary of State’s decision that the agreement was confidential was to be quashed.
John Howell QC and Nathalie Lieven (instructed by Leigh Day & Co) for the applicants. Philip Sales (instructed by the Treasury Solicitor) for the first respondent; Nigel Pleming QC and Sean Wilken (instructed by Ashurst Morris Crisp) appeared for the second respondent.
Thomas Elliott, barrister
