THE ENVIRONMENTAL INFORMATION REGULATIONS 2004
The Environmental Information Regulations 2004 came into force on 1st of January 2005 and replace the Environmental Information Regulations 1992.
What is Environmental Information?
The definition of Environmental Information is very wide and includes written, electronic, visual or audio information on:
- The state of the elements of the environment, e.g. air, atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms
- Factors affecting the environment e.g. substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases
- Measures (including administrative measures) and activities affecting or designed to protect the environment e.g. policies, legislation, plans, programmes, environmental agreements
- Reports on the implementation of environmental legislation
- Cost-benefit and other economic analyses and assumptions used within the framework of environmental measures and activities
- The state of human health and safety, including the contamination of the food chain, conditions of human life, cultural sites and built structures in as much as they are affected by the state of the environment, or factors, measures or activities affecting the environment.
Relationship between the Regulations and the Freedom of Information Act (FOIA) 2000.
Requests for environmental information will be exempt from being dealt with under the FOIA (Section 39). The effect of this exemption is to ensure that a request for Environmental Information is dealt with in accordance with the Regulations.
Who do the Regulations apply to?
The regulations apply to Horsham District Council, the range of public bodies covered by the FOIA and also public utilities, certain public private partnerships and private companies with obvious environmental functions such as those in the water, waste, transport and energy sectors.
Differences in the Request Handling Process between the EIR and the FOI
Whilst the general guidance for dealing with FOIA requests may be extended to cover EIR requests, the guidance will need to be adapted in a number of ways to reflect the differences between the Act and Regulations. The following are the main differences to take account of:
- EIR requests do not need to be in writing, FOIA requests do. When receiving verbal requests for environmental information, however, it would be prudent to confirm in writing what you are asking for.
- Under FOIA, the Council is not deemed to hold information if it is holding the information solely on behalf of someone else. However, under EIR, the Council is deemed to hold environmental information that is in its possession, even where it is holding that information on someone else's behalf.
- Under EIR, the time limit for complying with a request, like the FOIA, is 20 working days. However, unlike the FOIA, this can be extended to 40 working days where the request is complex or voluminous.
- Under FOIA, the fees that can be charged for dealing with a request are prescribed by the Regulations. If complying with a FOIA request would exceed the specified limit (£450), a public authority can refuse the request.
- Under EIR, all requests under the Regulations must be complied with, regardless of the cost. The Code of Practice suggests that the charge must not exceed the cost of producing the information unless the public authority is entitled to levy a market-based charge for the information (i.e. a 'reasonable' charge). Guidance under the 1992 Regulations also suggests that the staff costs in searching, retrieving, collating and supplying the information may be included.
Environmental Information Regulations/Charges
If the process of finding and retrieving the information to satisfy a request will take more than 18 hours (2.5 working days) then the authority will charge at a rate of £25 per hour for the total amount of time taken to retrieve the information.
Where there is an existing charge for information eg a contaminated land search, these charges will still apply.
Where charges for photocopying specialist pages are already in existence, eg planning publications, these charges will still apply, otherwise a standard photocopying/printing charge will apply. We will charge 5p per A4 sheet and 10p per A3 sheet (black and white) and charges will apply once the total amount is over £10. This equates to 200 pages of A4, or 100 pages of A3. See the FOI/EIR charges document for full details of photocopying/printing charges, along with existing charges information.
The requestor will be informed of a charge as early on in the process as possible. As soon as a charge is determined they will be sent a letter requesting that they pay the amount before the information can be sent to them. If the requested fee has not been paid within 60 days of the fees letter being sent, then the request will be closed.
EIR Exceptions
The Council may refuse to disclose information where an exception (see below) applies and the public interest in maintaining the exception outweighs the public interest in its disclosure.
- Information is not held when the request is received.
Although we cannot provide information we do not possess, we are obliged (Reg. 9) to provide advice and assistance. - The request is unreasonable.
When the amount of data sought is so large as to be unreasonable - it should be remembered that copies do not have to be provided summaries will suffice. - The request is too general.
Where the request is not specific enough. There is, however, a requirement for the Council to provide assistance in narrowing down the request. - Information intended for future publication.
In this case it would be reasonable to provide the applicant with an estimate of when the data will be published. - Request involves the disclosure of internal communications.
This exception is here to prevent the disclosure of e.g. internal drafts of a paper or notes from a brainstorming session. - Disclosure would affect the course of justice.
Where disclosure would hinder a fair trial or prejudice the ability of the Council to conduct an enquiry. However, this would not apply following a trial. - Intellectual property rights.
Disclosure would reveal the intellectual property rights of an organisation. - Confidentiality of proceedings.
Where the law requires confidentiality. - Commercial or industrial confidentiality.
This applies to information where to disclose it would be actionable and subject to a legal breach of confidence. - The interests of the supplier of the information.
This occurs when there is no legal obligation on the Council to disclose or there is no consent from third parties to disclose. - Environmental protection.
Where to disclose information could lead to the damage of a 'cultural site' or the environment. An example could be information on where there is a rare breed of bird nesting. - Personal data.
Information where the Data Protection Act covers disclosure.
Please note:
Exceptions 8, 9, 10 and 11 do not apply when the requested information applies to emissions.
For further information please contact:
Communication and Information Officer
Horsham District Council
Park North
North Street
Horsham
West Sussex RH12 1RL
Tel: (01403) 215571
Email: foi@horsham.gov.uk