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Environmental Information Regulations
The Environmental Information Regulations 2004, which came into force on 1 January 2005, provide the public with the right to access environmental information held by public authorities and other organisations. The Freedom of Information Act 2000 came into force on the same day. The Regulations transposed into English Law the EU Directive on Public Access to Information (2003/03/EC).
Environmental Information Regulations and Freedom of Information Act
Both the Environmental Information Regulations (EIR) and Freedom of Information Act (FOI) give the public rights to access certain information held by public authorities. However, while FOI covers all information held by public authorities, the EIR only covers environmental information.
The EIR definition of “information held by a public authority” also differs from the FOI definition. Under the EIR, the public authority holds information if the information is in the authority's possession and has been produced or received by the authority or if it is held by another person on behalf of the authority. As described below, this may include private companies who provide certain services to a public authority.
Environmental Information
The definition of “environmental information” in the Regulations is wide and includes written, electronic, visual or audio information on the state of the elements of the environment, e.g. water, air, land, etc., and factors affecting the environment such as waste, emissions, discharges and other releases. It includes information contained in documents, pictures and records, computer records and other non-documentary records. According to Defra’s interpretation of the EU Directive, it includes information that was collected before the Regulations came into force.
Scope of the Directive
The Regulations apply to a public authority that holds environmental information and any other body under the control of a public authority that exercises functions of a public nature or provides public services. Defra has interpreted “control” to mean “a relationship constituted by statute, rights, licences, contracts or other means which either separately or jointly confer the possibility of directly or indirectly exercising a decisive influence on a body”. Defra’s guidance, however, makes it clear that the existence of a contract between a public authority and a private company will not necessarily bring that company within the scope of the regime.
Defra’s guidance states that waste management companies collecting and managing municipal waste might fall within the definition of a public authority. The guidance suggests that there may be circumstances where “a private waste company that collects waste under contract for a local authority and for a supermarket” or private companies with “obvious environmental functions such as waste disposal” may come under the scope of the Regulation
Defra’s guidance also states that public authorities cannot “contract out” of their obligations and advises that “when entering into contracts public bodies should refuse to include contractual terms that purport to restrict the disclosure of environmental information held by the authority and relating to the contract beyond the restrictions permitted by the EIR”.
Responding to a Request for Environmental Information
A “public authority” must respond to a request for environmental information within 20 working days or 40 working days if the request is particularly complex. The public authority may charge the applicant for making the information available. The Government has not prescribed a standard charge suggesting only that it be “reasonable” and advising public authorities to make available a schedule of charges. A refusal to provide environmental information should be sent no later than 20 working days after the date of receipt.
Grounds for Refusing a Request
There are certain limited exemptions to the provision of information and any refusal must be made in writing and provide the reasons for the refusal. Section 12 of the Regulations lists the exceptions to disclosing environmental information which includes a request to disclose internal communications and a request which is “manifestly unreasonable”. Defra suggests that requests which are “manifestly unreasonable” could include those where the amount of information sought is excessive and places a substantial and unreasonable burden on the resources of the public authority.
A public authority may not disclose information that will prejudice the commercial interests of a business.
Appealing Against a Refusal
Under the EIR regime, an applicant who is dissatisfied by the refusal of a body to make available environmental information, or who considers that a request for environmental information has been inadequately answered, can appeal to the authority refusing the release of the information. This may mean that the public authority may need to set up an internal complaints procedure to review appeals against refusals to disclose information. If the applicant is still unsatisfied they can then apply to the Information Commissioner for a review of the decision. The decision of the Information Commissioner will be binding on both parties unless the applicant then appeals to the Information Tribunal.
Code of Practice
Defra produced a Code of Practice in February 2005 which provides public authorities with advice to help them carry out their duties under the Regulations. Defra states that whilst the guidance is not legally binding, it does set out an approach public authorities will be expected to follow when applying the EIR regime. Implementation of the Code of Practice is monitored by the Information Commissioner.
August 2006
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