3.1 Section 39 is a mandatory exemption which over-rides all the provisions in the FOI Act relating to the handling of requests and refusals. The question of whether information is or is not environmental information is a question of fact. This means that once it has been established as a matter of fact that the request relates to environmental information the request must be considered in accordance with the requirements and procedures of the EIRs. It is not open to public authorities to choose which regime to apply.
If only part of the information requested is environmental information, the request may need to be dealt with under both regimes, with the FOI Act regime continuing to apply to that information which does not fulfil the definition of environmental.
The same public interest test is applied by both the Act and the Regulations.