Better access to data under environment laws

The Environmental Information Regulations can provide access to a wealth of information, from a wide range of bodies. But this golden opportunity is being missed by many, says Kelly Harris

By and large the general public and those in business seem to be well aware of the potential benefits of the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002. The legislation – which came into force on 1 January 2005 – has allowed access to information covering a plethora of topics and has been used for a variety of purposes.

Indeed, public authorities subject to freedom of information legislation have recorded a larger number of information requests than originally expected and appeals to UK and Scottish Information Commissioners have also exceeded expectations.

Less is known, however, and less use has been made of the Environmental Information Regulations 2004 and Environmental Information (Scotland) Regulations 2004. This is despite the fact that EIRs – as they are sometimes known – apply to a wider range of bodies and facilitate access to a considerable amount of information.

Wider definition

Like freedom of information legislation, EIRs apply to public authorities but the definition of a public authority is much wider under EIRs. A public authority can be a government department; a body stated to be a public authority in terms of the freedom of information legislation, or a body that carries out functions of public administration.

Crucially though, a body which is under the control of any of these, and which exercises functions, provides services or has responsibilities of a public nature relating to the environment, will also be deemed to be a public authority. This last definition can bring private companies under the scope of the EIRs, and means that a requestor may be able to access information from a wider range of bodies.

A recent decision by the UK Information Commissioner relating to a private environmental consultancy company called Environmental Resources Management serves to illustrate. The company was found to be a public authority for the purposes of the EIRs, at least in respect of some of the information it held.

In that case, the information requested involved a review that Environmental Resources Management had conducted on the instructions of the Regional Assembly for the North East of England – a public authority, since it carries out functions of public administration. The Regional Assembly was required by statute either to carry out the review or to have it carried out by a third party.

Deemed to be an authority

Since the Regional Assembly had opted to delegate it to the consultants, the consultants were deemed to be carrying out a public function and under the control of the Regional Assembly. This made the company a public authority insofar as information relating to that review was concerned.

This case shows the type of company or body that is most likely to fall under the EIRs, without them or anyone else necessarily realising it. Such a company will typically be part of the private sector, but will have contracts with the public sector to provide services that are required by statute or subordinate legislation.

But what type of information is available? The information to which the EIRs apply includes anything that has been recorded, in writing or in “any other material” form. The subject matter can range from the state of the elements or of human health and safety, to economic analyses and reports on the implementation of environmental legislation.

The information rendered accessible by the EIRs is more limited than that accessed under freedom of information legislation. However, EIRs are an invaluable tool if you are looking for information relating to the environment. And there are advantages to making a request under the EIRs as opposed to freedom of information legislation.

Firstly, there is the wider definition of a public authority, as mentioned above. Both freedom of information legislation and the EIRs work on the basis of a presumption that requested information should be disclosed – subject to a number of specific exemptions. But the EIRs list fewer of these exemptions. This has the effect that information intended for future publication, for example, or that is available elsewhere – and that would therefore be exempt from disclosure under freedom of information – could be accessed through the EIRs, so long as it is environmental in nature.

Simple to access

As with the freedom of information legislation, obtaining information under the EIRs is as simple as making a written request to the public authority that holds it. The public authority is obliged to provide the information within 20 working days of receiving the request, although this deadline can be extended by a further 20 working days should the complexity or volume of the requested information require it.

One downside of the EIRs is that, like the freedom of information legislation, it allows the public authority to make a charge for providing information. Such charge must be “reasonable” in the circumstances, and can be required in advance of the information being supplied.

Nonetheless, the EIRs should not be overlooked as a means of garnering information and the charge is likely to be less than the value of the information obtained.

EIRs can be used for general interest, as a source of data on competitors or as a means of keeping tabs on the activities of public or private sector bodies. EIRs provide an access route to a wide range of information, from an even wider range of bodies than can be subject to requests under freedom of information legislation.

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