The High Court has set aside a decision refusing access to a report on options for State intervention in the rollout of next-generation broadband, and sent the matter back to the Commissioner for Environmental Information for reconsideration.
In a judgment delivered on 16 February 2016, Ms Justice Baker ruled that the Commissioner had applied an overly narrow test when deciding whether the report could qualify as environmental information. The court did not decide that the report must be disclosed, or declare that it contained environmental information.
The request was made by Stephen Minch to the Department of Communications, Energy and Natural Resources in May 2013. The department refused it on the ground that the report was not environmental information. The Commissioner upheld that refusal in December 2014. The report, prepared by consultants Analysys Mason, examined the financial and technical options for extending high-speed broadband, including wired and wireless approaches.
The Commissioner had concluded that the report did not address environmental factors such as energy, radiation or emissions, and that the National Broadband Plan was a high-level strategy whose connection to environmental effects was too remote. On that basis, he also rejected the argument that the report was an economic analysis within the framework of an environmental measure or plan.
Justice Baker held that the relevant rules cover economic analyses and models capable of informing government policy choices, even if they did not in fact determine the eventual decision and do not themselves contain information about emissions or environmental impacts. She found the Commissioner had wrongly limited the category to information about how a policy would be implemented and had applied an incorrect test of remoteness.
The appeal was a statutory appeal on a point of law. The judge said she could consider whether the Commissioner had made an error of law, but could not replace findings of fact or decide the report’s contents herself. The report was not before the court, and she refused the appellant’s request for an order directing its production.
The matter will return to the Commissioner for further determination. Whether the report qualifies as environmental information, and whether it should be disclosed, remain undecided.