JUDGMENT OF THE COURT OF 20 JANUARY 2021, C-619/19, LAND BADEN WÜRTTEMBERG (COMMUNICATIONS INTERNES)
SOURCE: Monthly Case-law Digest - January 2021
Reference for a preliminary ruling – Environment – Aarhus Convention – Directive 2003/4/EC – Public access to environmental information – ‘Stuttgart 21’ infrastructure project – Refusal of a request for environmental information – Article 4(1) – Grounds for refusal – Term ‘internal communications’ – Scope – Limitation in time of the protection of such communications
In October 2010, trees were felled in Stuttgart Castle Park, Baden-Württemberg (Germany), for the purpose of carrying out the ‘Stuttgart 21’ infrastructure and urban development project. In that context, D.R., a natural person, sent a request to the State Ministry of the Land of Baden-Württemberg seeking access to certain documents. Those documents involve, first, an item of information transmitted to that ministry relating to the work of a committee of inquiry in respect of a police operation preceding the felling of the trees and second, notes of that ministry relating to the carrying out of a conciliation procedure in connection with the ‘Stuttgart 21’ project. The request for access was refused.
The legal action brought by D.R. against the decision refusing access was upheld by the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg, Germany), according to which no ground for refusing access applied to the documents requested. That court held inter alia that the ground for refusal applicable to ‘internal communications’ of public authorities can no longer be relied upon once the decision-making process of the authority concerned has been completed. That ground for refusing access is laid down by the legislation transposing into German law the directive concerning public access to environmental information, which gives the Member States the power to establish such an exception to the public’s right of access. The Bundesverwaltungsgericht (Federal Administrative Court, Germany), before which an appeal on a point of law was brought, proceeded on the basis of the premiss that D.R. had requested access to environmental information within the meaning of the directive concerning public access to environmental information. Since it had doubts as to the scope and as to the limitation in time of the ground, referred to in the directive, enabling access to ‘internal communications’ to be refused, it decided to submit questions to the Court on those matters.
Findings of the Court
First of all, the Court considers the interpretation of the concept of ‘internal communications’ of public authorities, within the meaning of the directive concerning public access to environmental information. As regards, first, the word ‘communication’, the Court observes that this word relates to information addressed by an author to someone, an addressee who or which may be an abstract entity or a specific person belonging to such an entity. That interpretation is supported by the context of the exception that the Member States may lay down for internal communications. The directive adopts the distinction established by the Aarhus Convention between the term ‘material’, which does not necessarily concern information that is addressed to someone, and the term ‘communication’.
As regards, second, the word ‘internal’, the Court observes that only environmental information which does not leave the internal sphere of a public authority is considered to be ‘internal’. That also applies to information from an external source after it has been received, provided that it has not been disclosed to a third party or been made available to the public. That interpretation is supported by the objective, pursued by the exception available to the Member States, of ensuring that public authorities have a protected space in order to engage in reflection and to pursue internal discussions. The Court states, in that regard, that the fact that an item of environmental information may be liable to leave the internal sphere of a public authority at a given time cannot cause the communication containing it to cease immediately to be internal in nature. Whilst exceptions to the right of access are to be interpreted strictly, that cannot limit the scope of the exception for internal communications in disregard of the directive’s wording.
Consequently, the term ‘internal communications’ encompasses all information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received.
Next, the Court examines the temporal applicability of the ground for refusal of access to environmental information included in internal communications. It states, in that regard, that its applicability is not limited in time and does not depend on the drawing up of a document or on the progress in or completion of some administrative process. However, refusal of access to environmental information because it is included in an internal communication must always be founded on a weighing of the interests involved in the particular case. Indeed, in the light of the particularly broad material scope of that exception, the weighing of the interests, which must be carried out on the basis of an actual examination of each situation, is especially important and must therefore be tightly controlled. In carrying out that examination, the public authority to which a request for access has been made is required to consider, in any event, reasons which may support disclosure, such as bringing about a free exchange of views, more effective participation by the public in environmental decision-making or a better environment. It must also examine any particulars provided by the applicant that support disclosure of the information sought, without the applicant being required to set out a specific interest justifying disclosure.
Furthermore, when the information requested is contained in an internal communication, the public authority must take into account the time that has passed since that communication and the information contained in it were drawn up. That authority may take the view that, in the light of the time that has passed since it was drawn up, such information is no longer sensitive. Accordingly, the Court states that the exception to the right of access that the Member States may lay down for internal communications can apply only for the period during which protection of the information sought is justified.
Finally, the Court states that the weighing of interests must be capable of being checked and be amenable to administrative and judicial review at national level. In order to meet that requirement, a decision refusing access must be notified to the applicant and set out why there is a foreseeable risk that the disclosure of information could specifically and actually undermine the interest protected by the exception relied upon.