Justine Thornton, senior associate in the London environmental law group at Allen & Overy sets out the implications of the Environmental Information Regulations
The draft Environmental Information Regulations seek to provide a right of access by the public to environmental information held by private companies or PPPs providing environmental public services in the water, energy, waste and transport sectors. They also require these companies to organise and disseminate environmental information to the public.
Companies subject to the regulations need to start grappling with various logistical and practical issues in time for January 2005, when the regulations are expected to come into force.
How should environmental information be disseminated? How should the internal appeals procedure against a refusal to disclose operate? What is meant by the ‘public interest’ in not disclosing data? How should a company balance the public interest in not disclosing information against the statute in favour of disclosure?
The draft Environmental Information Regulations build on the existing regime, introduced in 1992, since when the public has had a statutory right of access to environmental information held by public authorities and certain other bodies. DEFRA is currently consulting on a draft code of practice and guidance to accompany the regulations.
The scope of the regulations
Public authorities such as central government departments, local councils, local planning authorities, the Countryside Agency, English Nature, the Environment Agency the Health and Safety Executive and the Health and Safety Commission are subject to the regulations. In addition, when many other body that carries out functions of administration: and any other body under the control of a public authority, that in relation to the environment has responsibilities, exercises functions of a public nature or provides public services.
Bodies providing environmental public services
DEFRA’s draft guidance envisages that private companies or public private partnerships with environmental functions such as waste disposal, water, sewage supply, energy and transport are within the scope of the regulations.
The guidance also refers to environmental consultants, which presumably refers to those retained by public authorities for work on public projects (for example building the Crossrail link).
Examples given include public utility companies involved in the supply of water, sewerage, electricity and gas, the Civil Aviation Authority and port authorities. This analysis would seem to extend to Network Rail and the rail companies.
The requirement that a company be under the control of a public authority is taken to mean a “relationship constituted by statute, regulations, rights, licenses, contracts or other means which either separately or jointly confer the possibility of directly or indirectly exercising a decisive influence”.
DEFRA does not intend to publish a definitive list of companies subject to the regulations on the basis that a decision on this is only possible on a case by case basis. The guidance acknowledges that a company’s relationship with its relevant controlling public authority may be ‘dynamic’ and that the company may move out of or into the scope of the regulations – a floating status that may put pressure on corporate document retention and information policies.
The main obligations on any companies falling within the scope of the regulations will be as follows:
environmental information is refused has the right to make representations to the company which must be considered free of charge.
A member of the public may complain to the Information Commissioner if he/she believes that a company has not dealt with a request in accordance with the requirements of these regulations.
Environmental information includes information on the elements of the environment and the interaction among these elements; activities of the company likely to affect the environment (the activities need not be adversely affecting the environment). It also includes information on human health and safety and contamination of the food chain; conditions of human life, cultural sites and built structures in so far as they may be affected by the state of the elements of the environment.
Practical and logistical challenges
Companies to be subject to the regulations need to start grappling with various logistical and practical issues. Companies will need to decide how to implement the duty to organise and disseminate environmental information including what is meant by “reasonable steps”; how much information needs to be put on websites and how to deal with historical information. Existing document retention policies may need to be reviewed.
An organisation is required to apply a presumption in favour of disclosure. The presumption may only be displaced where an exception to disclosure exists and the body considers that the public interest in not disclosing the information outweighs the public interest in disclosing it. Exceptions to disclosure include:
Where the information requested relates to information on emissions, disclosure of that information cannot be refused under the last three exceptions. Staff handling the information requests will need practical guidance to help them carry out the complex balancing exercise required to assess the strengths of competing public interests.
Setting up an appeals procedure
An internal complaints procedure needs to be set up to review appeals against refusals to disclose information. The procedure needs to be fair and impartial, will probably need to be undertaken by a person who was not a party to the original decision and may need to include members from outside the organisation.
Public sector contracts and information
Companies subject to the regulations cannot “contract out” of their obligations. The draft code of practice provides that when entering into contracts, organisations should refuse to include contractual terms that purport to restrict the disclosure of environmental information held by the organisation and relating to the contract beyond the restrictions permitted by the regulations.
It is worth noting that some of the exceptions including those for commercial confidentiality, and voluntarily supplied data, are not available when the information requested is about emissions to the environment.
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