In this article we look briefly at the Environmental Information Regulations 2004 (the "EIR"), and compare the scope and application of these provisions with those under the Freedom of Information Act 2000 (the "FOIA").
The EIR and FOIA
Section 39 of the FOIA exempts information if the public authority receiving the request is obliged under the EIR to make the information available to the public (or would be so obliged but for any exemption in those regulations). The information affected is environmental information, which includes any information in material form on the state of the elements of the environment (including air, water and biodiversity) and factors such as energy, noise, radiation or emissions and the state of human health and safety.
The Department for Environment, Food and Rural Affairs (DEFRA) has issued guidance on the EIR, and a code of practice. The Information Commissioner has also issued guidance on the EIR.
The EIR derives from Directive 2003/4/EC on public access to environmental information and replaces Regulations made in 1992. The EIR itself introduces an information access regime which is similar to FOIA: the public interest test is the same, as are the enforcement procedures. However there are some important differences compared with the FOIA regime, in particular:
- a wider range of bodies is covered;
- the deadline for responding may be extended to 40 working days only where the complexity and volume of the information requested makes it impracticable to comply within the normal deadline;
- the information held by a public authority includes information held on behalf of another person;
- oral requests are a possibility (and in some circumstances oral responses); and
- there is no cost limit on disclosures, but the public authority answering has the opportunity to charge a reasonable amount.
- there are some significant differences in the scope and application of the exemptions from disclosure under the EIR.
The key features of the environmental information regime are discussed in more detail below.
Scope of the EIR
The EIR applies to a wider range of bodies than the 1992 Regulations or FOIA, covering both public authorities as defined in FOIA (with minor exceptions) and persons controlled by them who provide public services relating to the environment.
In a recent decision (7 June 2006), the Information Commissioner (IC) stated that the purpose of the broad definition of "public authority" under the EIR was to avoid the problem of public sector bodies contracting out public services in order that legal obligations, such as the obligation to disclose environmental information, may be avoided. In that decision a private company, Environmental Resources Management Ltd, was held to be subject to the EIR for the purposes of the information in question (documents relating to a review carried out by Environmental Resources Management Ltd of the potential implications of the 2005 UK Sustainable Development Strategy on the North East Regional Strategy).
Similarly, on 4 August 2006, the IC ruled that Network Rail was a public authority under the EIR, due to the company's public administration functions and responsibilities. Network Rail was ordered to respond to two separate requests by individuals for information relating to flooding adjacent to track and the company's plans for the use of a branch line. However it was not considered to be a public authority for the purposes of FOIA.
What is environmental information?
The definition of environmental information in the EIR stems from Directive 2003/4/EC. It includes information "on" six aspects of the environment (the word "on" replaces "related to" in the 1992 Regulations):
- the state of elements of the environment (such as air, water, soil, land, landscape and natural sites, flora and fauna, including cattle, crops, GMO's, wildlife and biological diversity) and interaction between them;
- the state of human health and safety, conditions of human life, the food chain, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment and interaction between them;
- substances, energy, noise, radiation or waste affecting or likely to affect the state of the elements of environment and interaction between them;
- measures (including administrative measures, policies, legislation, plans, programmes and environmental agreements) and activities affecting or likely to affect, or intended to protect the state of elements of the environment and the interaction between them;
- emissions discharges and other releases into the environment; and
- cost benefit and other economic analysis used in environmental decision making.
The government has treated information relating to GM crop trials, pesticide testing, diseased cattle and land-use planning (including the reasons for decisions to approve as well as refuse planning permission) as environmental information. The definition could also include reports on the implementation of environmental legislation and analysis resulting from an appraisal of policy, including any Regulatory Impact Assessment.
It is not always clear whether a particular request is caught by the EIR or FOIA; the Information Commissioner has on occasion got this wrong. In Kirkaldie v The Information Commissioner (23 June 2006), the Information Tribunal held that legal advice relating to the night flying policy at Kent International Airport (and in particular the implications of new proposals for night-time flights on an existing agreement between Thanet District Council (TDC) and the airport operators), was environmental information within the meaning of the EIR. The Tribunal found that entering into and extending the agreement in question, was the sort of measure envisaged by the EIR which was likely to affect the state of the elements, in particular land, air and atmosphere and factors such as noise and emissions. Also noise and emissions could affect the state of human health and safety.
The Information Tribunal noted that Mr Kirkaldie did not state under which provision he was making his request and was under no duty to do so. However, in communications with TDC and the IC he raised the possibility that it was an EIR request. The Tribunal went on to state that "[a]lthough TDC considered both provisions they incorrectly concluded that it was a FOIA request, as did the IC".
Procedure for responding to a request for environmental information
When a request is for environmental information, the request must be handled in accordance with the requirements of the EIR and not in accordance with the requirements of the FOIA, where these are different.
Public authorities must make information held available on request as soon as possible, and no later than 20 working days after the date of receipt of the request. This deadline may be extended to 40 working days, but only where the complexity and volume of the information requested makes it impractical to comply within the normal deadline.
Environmental information is "held" by a public authority if the information is in its possession and has been produced or received by it, or is held by another person on its behalf. Unlike FOIA, the EIR also applies to information held by a public authority on behalf of another person.
The request can come from anywhere in the world. No interest needs to be shown or proved, no reasons need to be given for the request, and no reference to the EIR needs to be made. DEFRA guidance states that public authorities should respond flexibly and where appropriate provide advice and assistance, transfer requests and provide the information in the format requested.
Unlike FOIA, information may be requested orally and there is no requirement to provide an address. Further, there is no express bar to an oral response unless it is a refusal (which has to be in writing) or the applicant has specified another format.
A public authority may make a reasonable charge for the supply of environmental information. However the charge should not exceed the cost of providing the information, for example, the cost of photocopies. The appropriate level of such charges, and the principles to be applied in deviating from them, have now been laid down by the Information Tribunal in its decision on the Markinson case (which set a guide price of 10p per A4 sheet for photocopies).
Exemptions under the EIR
Regulation 12 of the EIR sets out a number of exemptions from the duty to disclose (called exceptions under the EIR). However, unlike the FOIA there are almost no absolute exceptions: all commonly used exceptions under the EIR are subject to the public interest test. Therefore a public authority must consider whether the public interest in maintaining the exception outweighs the public interest in disclosing the information.
Public authorities are also expressly directed by the EIR to apply a presumption in favour of disclosure. This derives from Directive 2003/4/EC, where it is stated that "the grounds for refusal...shall be interpreted in a restrictive way".
The exceptions in the EIR fall into the following categories:
Personal information (Regulation 12(3))
The exemption for personal information under the EIR closely tracks that for personal information under the FOIA. Broadly, information which includes the personal data of a third party is not to be disclosed to an applicant where to do so other than under the EIR would breach the Data Protection Principles. In general this requires the public authority to consider (under the First Data Protection Principle) whether the disclosure of the information is fair and lawful, whether the subject would have expected this disclosure and whether the disclosure can be justified under one of the preconditions in Schedule 2 (and if necessary Schedule 3) of the Act.
Alternatively, if the information would be exempt from disclosure under the Data Protection Act 1998 (were the individual named in it to make a request under that Act) then the information can be withheld under the EIR. So, for example, if the information relates to a criminal investigation and to disclose it would prejudice the investigation, then the information can be withheld. The public interest test applies to this part of the exception.
This exception requires close reading since the public interest test applies to some sections, but not all. As with the equivalent exemption under the FOIA it is a very complex provision.
Types of information (Regulation 12(4))
There then follows an exception which applies to certain types of information or types of requests. Some elements of this exception are similar to exceptions under the FOIA, but in general the exception under EIR has the potential to be much broader. This exception applies where:
- Information is not held when the request is received.
- The request is manifestly unreasonable (which includes requests that place a "substantial and unreasonable burden on the resources" of an authority (DEFRA guidance, 18.104.22.168). In practice this should apply to the EIR equivalents of "vexatious requests" under the FOIA (s 14)).
- The request is formulated in too general a manner, and the authority has complied with its duty to provide assistance, in an attempt to refine the request.
- The request relates to material still in the course of completion, to unfinished documents or to incomplete data (although the public authority will not avoid disclosure merely by labelling a document "draft". Under FOIA s 22, information intended for future publication, would be the equivalent exemption).
- The request involves the disclosure of internal communications (including communications between government departments). This exception is very broad and is expressed in more general terms than the FOIA exemptions relating to government policy and prejudice to the conduct of public affairs (ss 35 and 36). The DEFRA guidance gives the rationale for this exception as ensuring government policy and decision-making can proceed in "the self-contained space needed to ensure it is done well", but points out that its application will depend on the balance of the public interest.
Content of the information requested (Regulation 12(5))
This exception applies where the disclosure would adversely affect:
- International relations, defence, national security or public safety (equivalent to a number of exemptions under the FOIA including ss 24, 26, 27 and 38).
- The course of justice i.e. the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature (broadly equivalent to ss 30 and 31 of FOIA. As with the FOIA, the EIR do not apply to public authorities which are acting in a judicial capacity).
- Intellectual property rights. (Any intellectual property rights, including copyright protected material, may be protected by this exception - however if such information is disclosed it should be made clear to applicants that copyright still exists. There is no directly equivalent exemption under FOIA: instead public authorities would consider s 41 (confidentiality) and s 43 (commercially sensitive information)).
- The confidentiality of the authority's or another authority's proceedings where such confidentiality is provided by law. (Under FOIA, s 41 protects confidential information, the disclosure of which would result in an actionable breach of confidence. Therefore this could protect the confidential information of another public authority, although in practice the application of s 41 to confidential public sector information is problematic (see for example DCA guidance on this topic). The FOIA exemption clearly does not protect confidential information of the authority receiving the request. An authority wishing to protect its confidential information would need to rely on other exemptions e.g. for commercially sensitive information or for information relating the formulation of government policy (ss 43 or 35/36). Therefore here the EIR offers broader protection for information, subject always to the public interest test under the EIR and the basic requirement that the proceedings be confidential in nature).
- The confidentiality of commercial/industrial information, where such confidentiality is provided by law to protect a legitimate economic interest. (Under FOIA, ss 41 and 43 would be the equivalent exemptions for confidential or commercially sensitive information. However the language of the exemptions is different, here under the EIR there is a requirement for a "legitimate economic interest" and it remains to be seen whether this will be construed as a different threshold to the requirement for either confidential information or for commercially sensitive information under the FOIA. Again, under the EIR a public interest test would apply to this exception, unlike under FOIA where the exemption for confidential information is an absolute one).
- The interests of the person who provided the information, where, among other things, the person was not under an obligation to disclose it but did so voluntarily and has not consented to its disclosure. (There is no direct equivalent under the FOIA. Authorities might consider the exemptions for personal information (s 40), law enforcement (s 30/31), confidential information (s 41) or commercially sensitive information (s 43) perhaps. This exception will help to protect whistleblowers and case law indicates that it can be used to protect the identity of whistleblowers, but not the information they have provided. It is unlikely to apply to information created in negotiations since that will not have been "supplied" by one party).
- The protection of the environment to which the information relates.
For these exceptions listed above, the Information Commissioner states that a public authority "must show with certainty the harm that releasing the information in question" would cause. This is stronger than the test in FOIA, where some exemptions apply if disclosure "would, or would be likely to prejudice" the activity covered by the exemption.
Access to environmental information has long been seen as particularly important and this is reflected in the broad definition of environmental information and wide scope of public bodies to which the regime applies.
While the provisions under FOIA and EIR are to some extent similar, there are important differences and public authorities need to consider carefully any EIR requests, since the exceptions are in many cases subtly different to the equivalent exemptions under FOIA.