Environmental information exceptions
Like the Freedom of Information Act, the Environmental Information Regulations (EIRs) are concerned with openness and transparency. Unlike the Act the presumption is on disclose. There are no equivalents of the absolute exemptions which exist in the Act, however there are themes that cross over between the two regimes. Under the Regulations we must release environmental information unless there are compelling and substantive reasons to withhold it.
If information relates to emissions, the information must be released regardless of any grounds for refusal because of confidentiality of proceedings, commercial confidentiality, personal/ voluntary information or environmental protection.
The following is a list of the EIR exceptions, all of which are subject to the public interest test. The public interest test means that we should only withhold information if the public interest in not disclosing outweighs the public interest in disclosing the information.
List of exceptions
- Reg. 12 (4) (a): the information is not held when the request is received
- Reg. 12 (4) (b): the request is manifestly unreasonable
- Reg. 12 (4) (c): the request is formulated in too general a manner
- Reg. 12 (4) (d): the information is intended for future publication
- Reg. 12 (4) (e): the request involves the disclosure of internal communications
- Reg. 12 (5) (a): disclosure would adversely affect international relations, defence, national security or public safety
- Reg. 12 (5) (b): disclosure would adversely affect the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature
- Reg. 12 (5) (c): disclosure would adversely affect intellectual property rights
- Reg. 12 (5) (d): disclosure would adversely affect confidentiality of proceedings
- Reg. 12 (5) (e) disclosure would adversely affect commercial or industrial confidentiality
- Reg. 12 (5) (f): disclosure would adversely affect the interests of the person or organisation who provided the information
- Reg. 12 (5) (g): disclosure would adversely affect environmental protection
- Reg. 13: personal data
Other useful links:
- Guidance from the Department for Environment, Food and Rural Affairs (Defra) and the Information Commissioner's Office (ICO)
Summary of exceptions
Reg. 12 (4) (a): the information is not held when the request is received
This exception only applies where we do not hold the information at the time the request is received. It is a criminal offence to destroy information or alter it with the intention of preventing disclosure following receipt of the request. Information which is held for (but not physically by) us must still be released. Similarly, information which is held by the authority for another organisation must also be released, unless an exception applies. Information is held by us if it is in its possession or control. It is irrelevant whether the information is legally owned by us.
Reg. 12 (4) (b): the request is manifestly unreasonable
This exception applies when the amount of information sought is so large as to be unreasonable e.g a request for all information held on the Environment would be manifestly unreasonable. The exception should be used very sparingly as we must offer advice and assistance to any requestors, and should do so, before refusing a request on this basis.
Reg. 12 (4) (c): the request is formulated in too general a manner
This exception applies when a request is not specific enough. In this situation we must have offered advice and assistance to help the requestor reformulate their request and identify the information sought.
Reg. 12 (4) (d): the information is intended for future publication
The exception prevents us from having to release every single draft of a document before a final version is completed. In many cases, however, the public interest in releasing unfinished documents will be stronger than the public interest engaged with this exception, especially where the matter is subject to current public debate.
When applying this exception it would be reasonable to provide the requestor with an estimated publication date for the information.
Reg. 12 (4) (e): the request involves the disclosure of internal communications
We may refuse to disclose information if the request involves the disclosure of internal communications. This exception allows us to think in private, but it does not protect communications between us and any other person or organisation, be they public or private sector.
Reg. 12 (5) (a): disclosure would affect international relations, defence, national security or public safety
This exception only applies in these cases when, subject to the public interest test, we are not required to confirm or deny whether the information exists or is held by us.
Reg. 12 (5) (b): disclosure would affect the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature
Before we apply this exception we must be clear that release of information would have this adverse effect. This exception is narrower than the related FOIA exemptions, both in terms of the proceedings it covers and the likelihood of affecting the protected interest.
There is a strong public interest in not adversely affecting the course of justice or the right of a person to receive a fair trial. The main question for us would be whether releasing the information will actually have such an affect. It is not enough to think that its release might have such an effect.
Reg. 12 (5) (c): disclosure would adversely affect intellectual property rights
We may refuse to disclose information that would adversely affect intellectual property rights (e.g. patents). The fact that copyright in the information may be held by a 3rd party does not create an exception.
Reg. 12 (5) (d): disclosure would adversely affect confidentiality of proceedings
In this exception the confidentiality to be protected must be protected by law. We may not simply declare documents as confidential and then seek to rely on this exception; a legally protected right to confidentiality must already exist.
Reg. 12 (5) (e): disclosure would adversely affect commercial or industrial confidentiality
This exception only applies to information which has a confidentiality protected by law, which protects legitimate economic interests. Disclosure may only be refused where the commercial confidentiality would actually be adversely affected. In most cases, this will require demonstrating that the person or organisation whose interests are protected would suffer a real commercial or competitive disadvantage if the information were released.
Reg. 12 (5) (f): disclosure would adversely affect the interests of the person or organisation who provided the information
In these cases the information will have been provided voluntarily by an individual or organisation who will not have given consent to its disclosure. The purpose of this exception is to protect the supply to us of information that might not otherwise be made available (in particular fromwhistleblowers). Its purpose is not to except from disclosure information supplied in order to obtain a permit or licence. Even in these case the public interest in disclosing information supplied as part of such an application is likely to be very high.
Reg. 13: personal data
When information requested includes personal information, of which the requestor is not the subject, then use of the exception will depend on whether the disclosure of the personal information about a member of staff to the public would be fair and lawful under the Data Protection Principles within the Data Protection Act 2018.