Environmental Information Regulations 2004

Environmental Information Regulations

Derwent Bridge The Environmental Information Regulations 2004 provide an access regime for information held by the University on the local environment or environmental factors. The Regulations came into force, with the Freedom of Information Act (FOIA), in January 2005, and replace the Environmental Information Regulations 1992.

What is environmental information?

The Regulations' definition of environmental information is deliberately broad, and relates to anything that impacts on our environment (e.g. emissions, building projects, noise, health and safety) rather just ‘The Environment’.

The types of information which are caught may include:

The state the environment and factors effecting the environment: for example, instances of flooding, habitat loss, emissions, greenhouse gases, noise, building developments etc.

Information on the state of the elements (air, atmosphere, water, soil, land, landscape, biological diversity and its components, genetically modified organisms), or any interaction among these elements.

Information on measures such as policies, legislation (including reports on the implementation of environmental legislation), environmental agreements etc and also economic analysis/cost benefit of such measures.

Information on the state of human health and safety, the food chain, cultural/built structures (buildings, phone masts…) and the conditions of human life where they are effected by environmental factors (such as acid rain, air pollution, substances etc).

The information could exist in any form (written, visual, aural, electronic, etc). The definition of information does not include information that is yet to be created or that could be created by the manipulation of existing information. Information is not restricted by geographical area. As with the FOIA, the Regulations encompass any information held by the University, its subsidiaries, or that is held on its behalf by its agents or contractors.

Relationship between the Regulations and the Freedom of Information Act

As the Regulations establish a similar access regime to the FOIA, requests for environmental information are exempt under the FOI Act (FOIA, s. 39). The exemption thus acts as a gateway to the Regulations, under which requests for environmental information must be handled.

Where a request for information does not fall under the Regulations, it will be caught by the FOIA, which provides over-arching access to all other information. Both FOIA and the Regulations are overseen by the Information Commissioner’s Office.

As with FOIA, the Regulations apply to public authorities (such as government, local councils, schools and universities), but they also extend to public utilities and certain public-private partnerships, and private companies that have obvious environmental functions.

Overview of the Regulations

The Regulations allow people to request environmental information from public authorities such as the University.
A request can be verbal or written (electronic or hardcopy).
A request must usually be answered within 20 working days of receipt of the request, however this time period can be extended to 40 working days if the request is complex or voluminous.
If a public authority receives a request which they believe is too general, the authority will contact the applicant as soon as possible to try to determine specifically what information it is that they would like.
When making a request for information an applicant may state a preference as to the form/format in which they would like the information to be provided (e.g. hardcopy/electronic etc).
Public authorities may charge a reasonable fee for disclosing information, but cannot charge for an applicant to inspect information in situ.
Inevitably there is information for which there would be adverse consequences should it be released (for example, the nesting location of a rare bird species). To prevent such an event happening, the Regulations contain a number of exceptions which would allow public authorities to withhold that information. Details of these are given below.
None of the exceptions are absolute and all are subject to a public interest test.
If an authority refuses to disclose all/part of the information requested, that authority must state, in writing, what exception the information falls under and justify their decision. The authority will also inform the applicant that they have a right to appeal the decision, initially to the authority itself then (see our complaints procedure), if they remain dissatisfied, to the Information Commissioner’s Office.

Differences in handling requests

The FOIA and EIRs are closely aligned and the two acts have very similar requirements in terms of good records manangement, publication schemes and a duty to provide advice and assistance to those seeking information. Given the similarity between the two, it is best to adopt a unified approach to their implementation. There are, however, some important differences and these are noted below. Occasional notes on the Data Protection Act have been added for context.

	EIRs	FOIA	DPA
Time Limit for Response	20 working days [40 if complicated or voluminous]	20 working days	40 calendar days
Format of Request	Requests need not be in writing	Requests must be in writing	Written application to Records Manager with proof of ID and payment of fee
Fees	‘Reasonable’ fees can be charged. N.B. There’s no exception relating to the cost of compliance, so all requests must be complied with regardless of cost.	Exemption where cost of compliance exceeds the ‘appropriate limit’ [currently £450]	Standard charge of £10
Information covered	All information which is held by the University is included.	All information held by the University, except information held on behalf of another person.	Information about identifiable, living individuals held by the University
Exemptions	Certain exceptions exist, which are not always parallel to the FOIA exemptions
Public Interest Tests	All exceptions are subject to the public interest test	Some exemptions are absolute, and not subject to a public interest test	No public interest test
Commercial Interests	Where a request relates to information on emissions into the environment, it cannot normally be refused	Information prejudicial to commercial interests can be withheld if the public interest in withholding the information outweighs that in disclosure	N/A

In general there are only three situations where our response will require different treatment:

Where the possibility of a refusal to disclose arises (thus requiring the application of a different set of exemptions)
In the applicant of fees/cost-limits
In the recognition and appropriate handling of spoken requests

Requests under the Regulations do not necessarily need to be in writing. Like FOIA they could be received by any member of staff but, as well as in writing, the request could be made verbally (e.g. in person or by telephone). If receiving a verbal requests for environmental information it would be wise to confirm in writing what the applicant has requested. Applicants are similarly advised to follow up their request in writing as this will ensure that the precise nature of the request is understood and that the handling of their enquiry can be audited and reviewed in the event of a complaint.

EIR Exceptions

The University may refuse to disclose information in certain exceptional situations (see the exceptions below) and where the public interest in maintaining the exception outweighs the public interest in the information’s disclosure.

As with FOIA, just because an exception applies does not mean that it is mandatory to employ it. All the exceptions are subject to a public interest test and, as with FOIA, there will always be a presumption in favour of disclosure.

Exceptions based upon the type/nature of the information

Information is not held when the request is received

Request is manifestly unreasonable

For example, is vexatious or is so large as to be unreasonable. Remember that copies do not necessarily have to be provided and that the information can be given as a summary.

Request is too general

This exception can only be claimed having first attempted to help the applicant to refine or clarify their request.

Information which is unfinished or in the course of being completed

Where information is intended for future publication, the applicant should be informed of the expected completion date.

Request involves the disclosure of internal communications

This exception prevents the disclosure of information which may not yet represent the settled view of the University (such as internal drafts of a paper, notes from a brainstorming session). Potentially a broad exception, it will be narrowed by the public interest test (i.e. disclosure would cause some harm that sufficiently outweighs the public interest in release).

Exceptions based upon the content of the information

To engage one of these exceptions harm must result from the release of the information.

Disclosure would affect international relations, defence, national security or public safety

Includes adverse impact on the protection of the public, public buildings, industrial sites etc from accident or sabotage.

Disclosure would affect the course of justice

For instance, the ability of someone to gain a fair trial or the ability of the University/a public authority to conduct an inquiry of a criminal or disciplinary nature. The exception includes information covered by legal professional privilege and non-statutory disciplinary or regulatory matters.

Intellectual property rights

The exception covers patents, trademarks, unregistered designs - not confidential material that doesn’t enjoy such protection. It should only be applied if there is a real risk that disclosure (or further subsequent dissemination) would seriously undermine these rights. If, as with much copyrighted material, the information would still enjoy protection from the Copyright, Designs and Patents Act even after disclosure, “the case against disclosure would be considerably weaker”.

The confidentiality of the proceedings of a public authority

I.e. only in cases where such confidentiality is provided by law: for example, explicit statutory restrictions on disclosure; investigative, regulatory or other activities carried out according to a statutory scheme.

Commercial or industrial confidentiality

I.e. where such confidentiality is provided by law to protect a legitimate economic interest. For instance, by explicit statutory restrictions or by common law, where disclosure would be actionable and subject to a legal breach of confidence. Information covered will include: trade secrets, information supplied by contractors, information supplied as part of a tendering/procurement process, information held by regulators.
N.B. the focus of this exception is on the commercial interests of parties other than the University. The University’s commercial interests may be covered by the IPR exception.

The interests of the supplier of the information

For example, where information supplied on a voluntary basis in the expectation of non-disclosure and the supplier has not consented to disclosure, e.g. information protected by the common law duty of confidence, privately-owned material deposited in an archive.

Protection of the environment

Information whose release could harm the environment (e.g. information on the nesting site of a rare bird) or lead to the damage of a ‘cultural site’.

Personal Information

Requests for information held on the applicant are exempt as this right is given by the Data Protection Act; third party personal information can only be released where disclosure does not breach any of the Data Protection Principles.

Applying the exceptions

All exceptions are subject to a public interest test
As with FOIA requests, the application of any exception must be in consultation with the University Records Manager, who is responsible for issuing refusal notices.
The ability to neither confirm nor deny the existence of information only applies in respect of the exceptions for international relations, defence and public safety.
Where a request concerns information on emissions (the direct or indirect release of substances, noise, heat, vibrations into the environment) the following exceptions do not apply:
Where an exception has been successfully applied to certain information, all other requested information covered by the request and not the exception must be disclosed. Where it is not reasonably capable of being separated it should be extracted or given as a summary.

Copyright

Clifford's Tower, York Applicants should be aware that the information disclosed under the Regulations may be subject to copyright protection. While the University can provide you with the information in order to meet its obligations under the Regulations, copyright in the information will persist. If an applicant wishes to use the information in such a way that would infringe copyright (e.g. by making multiple copies, publishing or issuing copies to the public), they will require the permission of the copyright holder(s).

Where can I find out more?

Information Commissioner’s Office

The Environmental Information Regulations 2004 (Statutory Instrument 2004, No 3391)

Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004

For information on Freedom of Information and Data Protection, see http://www.york.ac.uk/recordsmanagement and http://www.informationcommissioner.gov.uk/