ARCHIVE: Environmental information regulations frequently asked questions

  1. What are the Environmental Information Regulations (EIRs)?
  2. What information is covered by the Regulations?
  3. Who do the EIRs apply to?
  4. Who may apply for access to information covered by the Regulations?
  5. Is this information covered by the Regulations limited to the UK?
  6. Where can I find more detailed guidance?
  7. What charges will be made for information?
  8. Can authorities respond to requests free of charge, charge less than full costs, or give discounts to certain groups?
  9. How do I decide whether a request is an FOI Request or an EIR Request?
  10. What grounds are there for refusing a request?
  11. Why were the 1992 Regulations updated?
  12. Why does Scotland have its own EIRs?
  13. How will EIRs be monitored?
  14. What are the appeals procedures?
  15. Is information relating to human health covered by the Regulations or FOIA?
  16. Why are the EIRs not made under the Freedom of Information Act 2000?
  17. Why do the EIRs not backdate the requirement to make information available electronically to 28 January 2003 (when the Directive entered into force)?
  18. The EIRs aren't under an absolute exemption from FOI, so doesn't that mean the public interest test is carried out twice?
  19. How will the Government policymaking process be protected?
  20. How can a public authority be either Government as a whole or an individual Government department?
  21. Is this just so 'internal communications' can protect Government policy making? How can this be justified in terms of the Directive?
  22. Does a public authority have the option to neither confirm nor deny (NCND) whether information exists and is held?
  23. Was any thought given to extending the time allowed for public interest decisions, as is the case with FOI requests?
  24. What about Crown Dependencies and Overseas Territories, such as Gibraltar?
1. What are EIRs?

The Environmental Information Regulations (EIRs) give certain rights of access to environmental information to the general public.

The UK has had Environmental Information Regulations since 1992. The new Environmental Information Regulations 2004 came into force on 1 January 2005.

2. What information is covered by the Regulations?

Regulation 2(1) states that environmental information is information in any form on any of the following:

  1. the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components; genetically modified organisms, and the interaction among these elements;
  2. substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
  3. measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the environment;
  4. reports on the implementation of environmental legislation;
  5. cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
  6. the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);
3. Who do the EIRs apply to?

The EIRs apply to all public authorities in England, Wales, and Northern Ireland. Scottish public authorities will be covered by Scotland's own EIRs.

'Public authority' means government departments and any other public authority as defined in FOIA; but also the following authorities which are not covered by FOIA:

  • any other body or other person, that carries out functions of public administration, such as utility companies; or
  • any other body or other person under the control of the aforementioned, such as waste contractors performing waste collection on behalf of a local authority.
4. Who may apply for access to information covered by the Regulations?

Any person or organisation may apply. Access is not confined to UK citizens and permanent residents; foreign nationals may also apply. The applicant is not required to prove an interest; or to say why he/she wants the information.

5. Is this information covered by the Regulations limited to the UK?

There is no geographical restriction: the information may relate to anywhere in the world.

Example:

  • sustainable procurement of embassies and
  • funding grants for overseas developments

are included.

However, the release of environmental information relating to overseas territories may need to be restricted for reasons of international relations. These cases will be decided on a case by case basis, taking into consideration the public interest.

6. Where can I find more detailed guidance?

More detailed guidance is available.

7. What charges will be made for information?

The EIR fee guidelines have been aligned to the FOI fees regime wherever possible.

Under the terms of the Directive, the EIRs require that:

  • information made available for inspection, and explaining where information is made publicly available, should be free of charge.
  • any charges be 'reasonable'

Defra guidance suggests that requests should be free up to the same appropriate limit as FOI requests - £600 for central government, £450 for local government. Above that limit, charges for EIRs will need to meet the EU requirement of reasonability.

Free requests should include:

  • information made available for inspection
  • explaining where information is made publicly available
  • oral queries answered on the spot, e.g. when waste is collected
  • many requests dealt with by local authorities, such as planning queries

Public Authorities may of course charge for disbursements such as photocopying and postage., but if an applicant comes to inspect information in situ where it is made available, it will be free of charge. See the Information Tribunal ruling on the Markinson Case.

8. Can authorities respond to requests free of charge, charge less than full costs, or give discounts to certain groups?

Yes.

9. How do I decide whether a request is an FOI Request or an EIR Request?

Any request relating to Environmental Information (see Question 3) should be regarded as an EIR request. A request may contain a mixture of environmental and non-environmental information, in which case each class of information should be handled under the appropriate regime.

10. What grounds are there for refusing a request?

The presumption is that environmental information must be released, unless there are compelling and substantive reasons to withhold it. The Regulations list the conditions under which a body can refuse information. Those judging whether to release or withhold information should interpret the exceptions narrowly. They should avoid the possibility of legal proceedings (e.g. for breach of confidence or failure to supply); if in doubt, they should seek legal advice.

A request for information can be refused (or information redacted) if:

  • Information is not held (then there is a duty to refer the request on)
  • The request is manifestly unreasonable
  • The request is too general (after fulfilling duty to advise and assist)
  • The request is for unfinished documents or data (in which case estimated time for completion must be given)
  • The request is for internal communications (as with all EIR exceptions, the public interest test must be applied)

Information may also be withheld or redacted in order to protect the following, subject to the public interest test:

  • Confidentiality of proceedings
  • International relations / public security/ defence
  • The course of justice and right to fair trial
  • Commercial confidentiality
  • Intellectual property rights
  • Personal / voluntary data
  • Environmental protection

If information relates to emissions, the information must be released notwithstanding any grounds for refusal because of confidentiality of proceedings, commercial confidentiality, personal/ voluntary data or environmental protection.

11. Why were the 1992 Regulations updated?

The EIRs were updated to bring the UK into line with international requirements, as laid down in EC Directive 2003/4/EC and also in the Aarhus Convention. The UK has ratified the Aarhus Convention.

Ministers agreed for EIRs to be implemented on 1 January to harmonise with FOIA.

12. Why does Scotland have its own EIRs?

Access to information is a devolved matter in Scotland.

Scotland has its own Freedom of Information Act and has therefore made its own new EIRs. Scotland has also harmonised the requirements of the EIRs with their Freedom of Information Act (Scotland) as far as possible. See:

13. How will EIRs be monitored?

The Department for Constitutional Affairs (DCA) will monitor how cases are handled throughout central government. From January 2005 all central government public authorities will report to the DCA on their handling of FOI and EIR information requests according to the monitoring criteria set out by DCA. This information will be held on central database and the statistics will be made public at regular intervals.

14. What are the appeals procedures?

Any applicant dissatisfied with a refusal to make information available, or who considers that a request for Information has been inadequately answered or delayed may:

1. ask for an internal review of the request
2. appeal to the Information Commissioner
3. go to the information Tribunal

15. Is information relating to human health covered by the Regulations or FOIA?

The Regulations cover human health and safety in as far as the environment affects it. This includes by means of organisms such as bacteria or viruses, effects of noise, waste, or emissions, effects of living in different areas of the land, accidents and their causes, and effects on health of any policies or legislation which may themselves have any effects on the environment.

Other aspects of health and safety are covered by FOIA - e.g. mortuary photos and age-related illness.

16. Why are the EIRs not made under the Freedom of Information Act 2000?

The EIR are made under section 2(2) of the European Communities Act 1972. When the FOI Act was being enacted, the powers in section 74 of the FOI Act were included to enable the UK to comply with its obligations under the United Nations Aarhus Convention on Access to Information.

Subsequently, the European Community adopted Council Directive 2003/4/EC to implement the convention for the EC. The EC legal obligation to implement the Directive has accordingly now become the more relevant legal obligation for EC member states.

17. Why do the EIRs not backdate the requirement to make information available electronically to 28 January 2003 (when the Directive entered into force)?

Whatever the date, public authorities would need to plan, organize, and move over to electronic record keeping. This has been a consistent message from Government for some time. The only reasonable way of introducing an implementation date of January 2003 for this provision would have been to have had draft amending regulations in the pipeline prior to the adoption of the Directive. This was clearly neither feasible nor intended. Ministers consulted and decided to implement this Directive in January 2005, in order to harmonise with FOIA and in the interests of better regulation.

The Directive does not require public authorities to make all information immediately available electronically but rather to 'organise' information 'with a view to its active and systematic dissemination' and to ensure that information 'progressively' becomes available electronically.

Public authorities that are also public authorities under FOIA are already subject to obligations in respect of dissemination. Defra's guidance to public authorities encourages them to disseminate as much information as possible.

18. The EIRs aren't under an absolute exemption from FOI, so doesn't that mean the public interest test is carried out twice?

No. A public authority that receives a request for information that it holds must decide whether the request is for environmental information or for information which needs to be dealt with under the FOI Act. To do this, the authority looks to the definition of environmental information in the EIR. If the request is for environmental information the request must be dealt with under the EIR only. The FOI will not apply. Section 39 of the FOI Act provides a gateway through which the request goes into the EIR.

19. How will the Government policymaking process be protected?

Bodies must be allowed to make decisions in private. The background deliberations, papers and reports leading up to policy statements or decisions may be confidential, for example, if it is considered that their release might lead to speculation, confusion or uncertainty and that this would not be in the public interest in all the circumstances of the case, or if there was a possibility that the outcome of these deliberations could be jeopardised.

The exception for internal communications can be used to protect this decision making process.

20. How can a public authority be either Government as a whole or an individual Government department?

The definition of public authority includes government departments. The Regulations apply to all public authorities, including the Government. The EIRs treat government departments as separate bodies where this is necessary to ensure the EIR obligations work in practice to help people efficiently get the environmental information to which they are entitled. For example, where a public authority does not hold environmental information requested, it must transfer the request to the public authority it believes does hold the information. For this purpose each government department is treated as a separate body.

For the purposes of internal communications the Government can be viewed as a whole. This means that information does not need to be disclosed if it falls under the heading of internal communications.

21. Is this just so 'internal communications' can protect Government policy making? How can this be justified in terms of the Directive?

The Directive defines public authority as "government or other public administration".
The United Nations' implementation guide to the Aarhus Convention covers 'internal communications'. In some countries, the internal communications exception is intended to protect the personal opinions of government staff.

There is no reason why the exception should only apply to communications within a single government ministry. The purpose of the exception is clearly to protect the candour of internal discussions within the government of a member state. And it therefore applies equally to communications between ministries.

The application of this exception will of course be subject to the public interest test.

And of course the Information Commissioner will be responsible for making known to Government views about the application of the public interest test in particular circumstances.

22. Does a public authority have the option to neither confirm nor deny (NCND) whether information exists and is held?

The EIR will allow a neither confirm nor deny (NCND) reply where the information relates to international relations, defence, national security or public safety.

23. Was any thought given to extending the time allowed for public interest decisions, as is the case with FOI requests?

The terms of the Directive do not allow such an extension.

24. What about Crown Dependencies and Overseas Territories, such as Gibraltar?

Their public authorities are not covered by the UK EIRs.
However, as Gibraltar is part of the EU, Gibraltar is making its own EIRs in order to comply with the European Directive 2003/4/EC.

Page last modified: 15 February 2007
Page published: 3 March 2005