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The Freedom of Information Act empowers the Secretary of State for the Environment Food and Rural Affairs to make provisions for the release of environmental information.  What this means in practice is that a new set of Environmental Information Regulations (EIRs) came into force January 1st 2005 .  Strengthening the original 1992 EIRs, the new regulations will allow you access to environmental information in broadly the same way that you can request other information under the FOIA. 

Although separate from the FOIA, the EIRs, together with the Data Protection Act, are part of the same whole.  Since January 1st 2005 the Information Commissioner has had responsibility for all three statutes.  The new EIRs, which are currently before Parliament in draft form, set out legal rights and responsibilities similar to those established by the FOIA, although there are some significant differences, especially in relation to exemptions (see below.)   Enforcement procedures will be the same as for the FOIA, with public authorities expected to abide by the Code of Practice issued under the FOIA’s section 45.  They are also expected to proactively release environmental information under their publication schemes.

Scope

The Government’s consultation document on the draft EIRs states, ‘There is no case for treating environmental information in any respect less favourably than other information.’  The EIRs will cover the same range of public authorities as the FOIA and, although the final list of authorities is yet to be finalised, the Government’s consultation document was clear that privatised utility companies should be covered by the regulations.

Unlike the FOIA, requests for information can be oral as well as written.

The EIRs cover a wide variety of environmental information including:

• ‘Raw’ data on subjects such as air and water quality levels, industrial discharge rates, soil quality and biodiversity.
• Regulatory measures affecting the environment, including policies, plans, programmes and agreements.
• Reports on the implementation of environmental legislation.
• Economic analyses, including cost benefit analyses on regulatory measures.
• Health & safety information, on subjects such as food and land contamination and quality of life.

There is no geographical restriction on the information, as long as it is held by one of the public authorities covered by the EIRs, it can relate to anywhere in the world.   It may therefore include information about UK embassies and foreign aid programmes.  Neither are there any historical restrictions, since, like the FIOA, the regulations are fully retrospective.

Exemptions

The exemptions set out in the draft EIRs are narrower than the FOIA; there are fewer of them, and, crucially they are all qualified - or ‘public interest’ – exemptions, rather than absolute. 

The ‘harm test’ applied in some of these qualified exemptions is also more stringent.  Information can only be withheld if it would ‘adversely affect’ the subjects specified, rather than simply ‘prejudice’ them (‘prejudice’ being the term used in the FOIA.) 

Taken together these factors mean that, in theory, it should be easier to access information than under the FOIA.  However, as the freedom of information campaigners have pointed out, some documents will be covered by both the EIRs and the FOIA, which could undermine the EIRs’ more liberal regime. 

The ‘adversely affect’ test applies to information involving:

• International relations.
• Defence and national security.
• Public safety.
• The course of justice, including court proceedings and internal inquiries.
• Intellectual property rights.
• Legal confidentiality of any proceedings within a public authority.
• Commercial confidentiality designed to protect legitimate economic interests.
• Voluntarily supplied information from people who have not consented to its disclosure.
• The environment to which the information relates.

The other main balanced exemptions concern:

• Requests that are 'manifestly unreasonable’ or ‘too general'.
• Incomplete or unfinished information such as draft reports or other work in progress.
• Internal communications from within the authority.
• Personal data that does not breach the DPA.

The internal communications exemption, since it omits a harm test, is more restrictive than the equivalent sections of the FOIA.

According to the draft EIRs, if a public authority considers the information should be exempt from disclosure it does not have to confirm or deny whether it holds the information.  Any refusal to disclose information must be given in writing, citing the reasons why.