Environmental Information Regulations or Freedom of Information? A reminder…

When receiving a request for information, often one tends to immediately start considering it under the Freedom of Information Act 2000 (“FOIA”). However an alternative statutory regime may, in fact, be appropriate even if the requestor themselves asks that the receiving party deals with the request under the FOIA.

The Environmental Information Regulations 2004 (“EIR) may be nearing their grand 15th birthday, but are often the forgotten sibling of FOIA.  However, section 39 of the FOIA provides an exemption for any environmental information held by a public authority which is subject to the EIR, and it is that regime which the request should correctly be considered under.

“Environmental information” is defined in regulation 2(1) of the EIR and involves:

  • The state of the elements of the environment (eg air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and genetically modified organisms) and the interactions between the elements.
  • Factors affecting, or likely to affect, environmental elements (eg substances, energy, noise, radiation, waste, emissions, discharges and other releases into the environment).
  • Measures (including administrative measures, policies, legislation, plans, programmes and environmental agreements) and activities affecting, or likely to affect, the elements and/or factors (see above).
  • Reports on the implementation of environmental legislation.
  • Cost benefit and other economic analysis used in environmental decision-making.
  • The state of human health and safety, conditions of human life, the food chain, cultural sites and built structures insofar as they are, or may be, affected by elements / factors / measures.

As such, “environmental information” is far broader than one might immediately assume, to include not just information relating to development, planning, pollution, and energy management or waste, but also data relating to, for example, financial information relating to the costs of developing land and pest control.

It is important to make the distinction between whether FOIA or EIR applies because while both pieces of legislation have similar effects, there are some differences in their application. Broadly speaking:

  • The EIR has potential to extend to a wider range of entities than just bodies deemed to be “public authorities” under the FOIA – including (1) bodies or persons carrying out functions of a public nature and (2) any other body or person “under the control of” an entity subject to EIR that has public functions relating to the environment.
  • Requests under the EIR need not be in writing.
  • Bodies subject to the EIR may be able to charge for disclosure of information if the request is wide ranging (there is no equivalent “cost cap” provision to that provided under the FOIA), although the charge must be reasonable and should not serve as a deterrent.
  • A body subject to the EIR is deemed to “hold” the information requested even where it holds it on behalf of another person.
  • There is a presumption in favour of disclosure of environmental information, particularly insofar as the request relates to emissions.  Under EIR the “exceptions” from disclosure are subject to a public interest test; ie the public interest in maintaining the exception must be balanced against the public interest in disclosing the information.  This contrasts with the position under FOIA, whereby not all “exemptions” are subject to a public interest test.”

We have in depth experience advising on the application of the EIR and FOIA in a range of contexts for education institutions and other bodies; do get in touch if you require further information or assistance.

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