2.1 The effect of this section is to ensure that requests for "environmental information" within the meaning of the Environmental Information Regulations 2004 (EIRs) are dealt with under the separate access regime set out by those Regulations. This guidance chapter provides a definition of environmental information that will help to identify which regime should apply. The Department for the Environment, Food and Rural Affairs is preparing separate guidance on the operation of the EIRs where they apply.
Section 74, allows Ministers to make the (EIRs) which replace the Environmental Information Regulations 1992 as amended by the Environmental Information (Amendment) Regulations 1998. The replacement Regulations give effect in the UK to the provisions of Directive 2003/4/EEC on public access to environmental information. These provide for the handling of all requests for environmental information as defined in the regulations. This means that requests for environmental information may only be handled in accordance with the requirements of the EIRs.
Information may be disclosed or refused under these regulations in accordance with their provisions. All the exceptions in the EIRs are subject to a public interest test.
Regulation 5 (6) of the EIRs provides that;
"Any enactment or rule of law that would prevent the disclosure of information in accordance with these Regulations shall not apply."
Requests for environmental information may only be decided in accordance with the EIRs. The exemption provisions of the FOI Act (or any other legislation) cannot therefore be used if the request concerns information as defined in Regulation 2, even if the FOI Act includes exemptions which may appear to be relevant or appropriate.
Regulation 2 provides that :
"environmental information' has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on-
2.4 Experience from the implementation of the environmental information regime has established that 'environmental information' is interpreted very broadly. The Government has treated all information relating to GM crop trials, to pesticide testing, to diseased cattle and to land-use planning (including the reasons for decisions to approve as well as to refuse planning permission) as environmental information. The definition would also include reports on the implementation of environmental legislation and any analysis resulting from an appraisal of policy, including any Regulatory Impact Assessment (RIA). It is important to note that the definition 'environmental information' can include a wide range of information which is not, in itself, about elements of the physical environment.
2.5 The definition has not however been extensively tested in the domestic or European courts, although in two cases the High Court has given the expression "information relating to the environment" a fairly wide meaning. The High Court has established that whether information is or is not environmental information is a question of fact. It held that the definition could include the source of information relating to the state of the environment, including the name, if that is necessary to assess the credibility of the information. For this reason, in the Ibstock case, the name of an informant who gave information about munitions dumped down a mineshaft was considered to be a part of the environmental information that should be released. [footnote 1] (note, however, that this case pre-dates the Data Protection Act 1988.) The High Court also decided that the content of a concession agreement relating to the construction of a motorway was environmental information for the purposes of the 1992 Regulations. [footnote 2]
2.6 The European Court of Justice has also indicated that it will adopt a broad view of the definition of environmental information. A statement of views given by a countryside protection authority that was capable of influencing the outcome of development consent proceedings has been found to be environmental information. [footnote 3]
2.7 The Regulations apply to any information 'held by or on behalf' of a body whether or not it was obtained as a result of that body's environmental responsibilities. It includes information collected before the Regulations came into force. It thus includes information held within the body's buildings or elsewhere, held on its own behalf or on behalf of others (e.g. for consultants or private companies), and it includes information held by others on behalf of the public authority (e.g. by consultants, private companies or in archives). Environmental information includes information passed for safekeeping to the National Archives and other record offices. [footnote 4]
2.8 There is no geographical restriction on this definition. The information may relate to anywhere in the world. So, for example, information on the estates of embassies or on overseas aid programme grants for schemes that impact upon the environment are included within the definition of environmental information for the purpose of these Regulations.
2.9 Environmental information can be in any recorded format; written, visual, audio taped or database form. It includes information contained in documents, pictures and records, where records are taken to include registers, reports, returns, computer records and other non-documentary records. Maps will generally contain environmental information. No types of information are excluded from the potential ambit of environmental information. It includes, for example, all types of decision letters, applications, inspection reports, concession agreements, contracts, tables, databases, spreadsheets, e-mails, photographs, sketches and handwritten notes or drawings and covers opinions and advice as well as facts.
2.10 Environmental information does not, however, include non-existent information that could be created by manipulating existing information. Nor does it include information that does not exist until further research has been carried out. Similarly, it does not include information destroyed in accordance with established records management procedures (but note that the Regulations, like the FOI Act, create an offence of altering records to avoid disclosure).
2.11 Environmental information includes information relating to the way relevant information was obtained, and any guidance about its potential accuracy or potential to mislead. Public authorities are therefore advised to consider the accuracy of any information they hold. Information could be based upon opinion rather than fact. If so, this should be made clear. In addition, information could be inferred, dependent on forecasts, or derived from samples. It could come from a third party and be of unspecified reliability or selected by a supplier in order to argue a particular point of view. In cases where validation could be costly, bodies would be well advised to protect themselves by issuing a disclaimer addressing issues to be taken into account in interpreting information released to the public - this could include its accuracy, its source and any other known limitations that would need to be taken into account in interpreting it. For example, where the information requested is derived from a very small statistical sample, it may be appropriate to make clear that this is the case and that it would be unwise to rely upon it.
2.12 There is no time limit on historical data. If environmental information currently exists it is covered by the Regulations, no matter when the information was created or gathered.