Badger culling, protest, and public safety

The First-Tier Tribunal (General Regulatory Chamber) has dismissed Natural England's appeal against a decision by the Information Commissioner ordering NE to release information regarding the ecological effects of badger culling. The request was made by an ecologist, Tom Langton, in respect of impact assessments of the 2016 round of badger culling licences on species protected by European and domestic law and all designated nature conservations areas. NE partly acceded to the request but withheld some information on the grounds of public safety (regulation 12(5)(a) of the Environmental Information Regulations 2004). NE argued that the exception was engaged because the information could be used together with other information to identify participants in culling operations and the extent of the cull zones. This, it was argued, could have an adverse impact on the protection of private property, public buildings and individual health and safety due to the activities of badger cull protestors.

The Information Commissioner disagreed with NE and ordered it to disclose the withheld information, and NE appealed. After a two day hearing, which considered evidence in respect of the activities of the anti-cull movement, the Tribunal dismissed the appeal. The Tribunal found:

(a) That the disclosure of the information would not have more than a minor impact on protestors' knowledge of cull zone boundaries;

(b) In any event, it was not satisfied that greater knowledge of the cull zone boundaries would either cause an appreciable risk of the type of harm to individuals previously reported as having been caused by anti-cull protestors, or that the consequences of criminal damage to badger traps were of importance;

The Tribunal concluded:

"74. We conclude that we are not satisfied on the balance of probabilities that disclosure of the withheld information at the relevant time would have caused direct or actual harm to public safety or the increased risk of harm to the extent that it could be said to affect public safety. In reaching that conclusion, we adopt Mr Knight’s approach to the assessment of risk versus consequences at paragraph 59 above and conclude that the incidences of harassment, whilst serious, are at the low end of future risk and that the incidences of damage to property, whilst somewhat higher in risk, are lower in consequence.

75. We place no artificial gloss on the concept of “public safety/security”, but we do note its inclusion in a category of weighty criteria for allowing an exemption to the duty of disclosure and that it should be interpreted restrictively. In seeking to interpret it, we consider that the exception requires us to identify some consequence to the public over and above concerns about the safety of a limited class of individuals. That public element could, in our view, comprise the national interest in enforcing the rule of law, but we do not consider that the exception is necessarily engaged where offences against individuals had been committed without wider consequences being identified.

76. In all those circumstances, we are not satisfied that the cumulative effect of the evidence in this case is sufficient to place the effects of disclosure of the withheld information at a place on the spectrum of harm or risk of harm where it engages the exception."

The Tribunal also concluded, in the alternative, that even if the exception was engaged, the public interest in disclosure would outweigh the public interest in maintaining the exception.

As well as its immediate significance for opponents of badger culling, the Tribunal's decision may be of general importance where environmental information is withheld on public safety grounds.

Click here for the decision.