European Communities Act 1972
EC Council Directive 2003/4
Energy Information Regulations 2011, as amended (S.I. 2011 No. 1524 2012 Nos. 2897 and 3005, 2013 No. 1232, and 2014 No. 1290)
Environmental Information Regulations 2004 (S.I. 2004 No. 3391)
Environmental Information (Scotland) Regulations 2004, as amended (S.S.I. 2004 No. 520 and 2013 No. 127)
The Environmental Information Regulations 2004 (and the equivalent Scottish Regulations) implement, pursuant to the European Communities Act 1972, EC Council Directive 2003/4.
The Regulations provide for the freedom of access to, and the dissemination of, information on the environment held by, inter alia, Government departments, public authorities, other bodies that perform public administration or which are under the control of the above and have public responsibilities, exercise functions, or provide public services in relation to the environment (Reg. 2(1)).
The Regulations apply only to public authorities, but not to the extent that they are acting in a judicial or legislative capacity. They do not apply to either House of Parliament.
Environmental information means any information in written, visual, aural, electronic or any other material form on (EC Directive, Art. 2)–
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components (including genetically modified organisms) and interaction among these elements;
(b) factors, such as substances, energy, noise, radiation, waste, emissions, discharges and other releases into the environment, which affect or are likely to affect the elements in (a) above;
(c) policies, legislation, plans, programmes, environmental agreements and activities affecting or likely to affect the environment;
(d) reports on the implementation of environmental legislation;
(e) economic analyses used in relation to (c); and
(f) the state of human health and safety inasmuch as they are or may be affected by the environment.
The Environmental Information Regulations 2004 require public authorities progressively to make available environmental information to the public by electronic means. They must take reasonable steps to organise the environmental information they hold with a view to its active and systematic dissemination to the public (Reg. 4).
This information must be made available, upon request, as soon as possible and no later than 20 working days after the request is received (Reg. 5) although extensions to this time are possible (Reg. 7). A reasonable charge may be made when information is requested, but no charge may be made for access to public registers or for viewing information at a place which the authority makes available for the purpose (Reg. 8).
The Scottish Regulations provide for similar arrangements.
An authority may refusal to give information if an exception to disclose exists under the Regulations and the authority decides that the public interest in maintaining the exception outweighs the public interest in disclosing the information (Reg. 12). There is a presumption in favour of disclosure.
The exceptions to disclosure include situations where–
(a) the public authority does not hold the information at the time of the request;
(b) the request is manifestly unreasonable;
(c) the request is too general;
(d) the information is unfinished or incomplete;
(e) internal communications would be disclosed;
(f) disclosure may adversely affect international relations, defence, national security, public safety, the course of justice, intellectual property rights, confidentiality rights or the protection of the environment to which the information relates; and
(g) the interests of the person who supplied the information would be adversely affected, they were not under any legal obligation to supply it, they did not supply it in circumstances such that the authority (or any other authority) is entitled to disclose it, and they have not consented to its disclosure.
There is also an exception to the disclosure of information which includes personal data where the applicant is not the subject of the data (Reg. 13). Such information must not be disclosed if data protection principles would be breached, if the subject of the data would not be entitled to access to it under the Data Protection Act 1998, or if the subject of the data has given notice that disclosure would cause unwarranted and substantial damage or distress and there is no overriding public interest in disclosure. The refusal to disclose information must be explained within 20 working days of receipt of the request (Reg. 14) and a complaint to the Information Commissioner, or an appeal to the First-tier Tribunal/Upper Tribunal (as determined by Tribunal procedure rules), against the refusal may be made. A Government Minister may act to refuse disclosure where national security may be compromised or disclosure would not be in the public interest (Reg. 15).
The Scottish Regulations make similar provision.
The Environmental Information Regulations 2004 amend s.39 of the Freedom of Information Act 2000 so that information that must be disclosed to the public under the Regulations is exempt information for the purposes of that Act i.e., disclosure must be sought under the Regulations, not under the Act.
The Scottish Regulations make a similar amendment to the Freedom of Information (Scotland) Act 2002.