Freedom of  Information Ltd

Environmental information falls under the Environmental Information Regulations (EIRs), rather than the FOIA.  The Regulations does not specify exactly what information is classed as environmental, but among the types covered are:

• ‘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.

The Regulations cover the same range of public authorities as the FOIA and enforcement procedures are also the same, with public authorities expected to abide by the Code of Practice issued under the FOIA’s section 45.  They are also required to proactively release environmental information under their publication schemes.

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 FOIA, the regulations are fully retrospective.

Unlike the FOIA, information requests may be made orally, as well as in writing. 

Exemptions

The EIRs' exemptions 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 is 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.