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Environmental Information Regulations
A. Increasing Public Access to Environmental Information
The public has the right of access to environmental information under the Environmental Information Regulations 1992. The Environmental Information Regulations 2004 (EIR) came into force on 1 January 2005 and transpose into English Law the EU Directive on Public Access to Information (2003/03/EC). This Directive was introduced to implement the Aarhaus Convention provisions on access to environmental information.
B. Draft Code of Practice
Section 16 of the EIR requires the Government to issue a code of practice to provide guidance to public authorities on the practice they should follow in connection with the discharge of their functions under EIR. 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. A draft of the guidance can be located at: http://www.defra.gov.uk/corporate/consult/envinfo/ and its implementation will be monitored by the Information Commissioner.
B. Definitions
Environmental Information
The definition of environmental information is wide and includes written, electronic, visual or audio information on the state of the elements of the environment-water, air, land etc-and factors affecting the environment like 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, it includes information that was collected before the Regulations came into force.
Public Authority
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. Control is interpreted by DEFRA 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Defra’s draft guidance states that waste management companies collecting and managing municipal waste fall within the definition of a public authority: Defra states, “examples of bodies covered by EIR are private companies or Public Private Partnerships with obvious environmental functions such as waste disposal, water, energy, transport companies (such as the Civil Aviation Authority and port authorities) and environmental consultants”. The Regulations, Defra has suggested to ESA, do not apply to collection of non-municipal waste.
Defra’s draft guidance states that companies 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”.
C. 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.
D. Grounds for Refusing a Request
Section 12 of the Regulations list 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 although this does not apply where the information requested is about emissions into the environment.
E. Appealing Against a Refusal
Under the new regime the first appeal by 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, should be 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 are then able-free of charge-to apply for review by the Information Commissioner. The decision of the Information Commissioner will be binding on both parties unless the applicant then appeals to the Information Tribunal.
January 2005
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