Cross v. Information Commissioner and the Security Service

The appellant challenged the refusal by the UK security service ("MI5") (and the Information Commissioner, which had considered a preliminary appeal) to provide details of MI5's scope 1, 2, and 3 greenhouse gas emissions, per a request made under the Environmental Information Regulations 2004 ("EIR"). The EIR ostensibly requires public authorities to disclose such information, but an exception permits refusal of disclosure requests where such disclosure would "adversely affect... international relations, defence, national security or public safety" (12(5)(a) EIR). The appellant relied on the Aarhus Convention to bolster their arguments as to the importance of access to such environmental information, and argued that MI5 had failed to demonstrate sufficiently the causal link between disclosure of the information requested and any adverse effects on national security and that, in any case, the public importance of addressing the climate crisis effectively outweighed any national security-related public interest arising in this instance. The judgment summarized the appellant as arguing that: "Vague and non-specific concerns about national security should not override transparency about important climate change issues”. The Tribunal “concluded that the emissions data would give an insight into the capabilities and operations of MI5 and that this information would be of assistance to hostile actors, thereby compromising the ability of MI5 to maintain national security” and that, ultimately, the climate-related public interest in disclosure did not outweigh such considerations. As a result, the appeal was denied. However, the Tribunal also held that: "The impact of climate change is almost universally acknowledged and urgent action is required to abate further deterioration of atmospheric conditions, to reduce the rise in sea levels and to reduce global-warming. The issue affects all citizens across the Earth and the impact cannot be understated in terms of its significance. The Aarhus Convention was adopted to provide citizens with this type of information to allow for awareness, debate and informed action. This factor was a compelling consideration to be factored into the public interest test." This last finding could be significant in other EIR cases: it will be difficult for public authorities to refuse to disclose such information, absent the particular national security considerations that applied to MI5 specifically.