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On 10 October 2000, UK Department of Environment Transport and the Regions issued a consultation paper in order to seek the views of organisations and bodies in England, Wales and Northern Ireland on proposals for a revised public access to environmental information regime. Responses were requested from public bodies holding environmental information, public bodies with interests, NGOs, waste disposal companies, gas companies, telecommunications companies, water companies, electricity companies, rail operators, airlines, shipping companies, port operators, freight hauliers, construction companies and other interested bodies. The provisional closing date for responses was 5 January 2001.

By 19 January 2001, 77 responses had been received. Copies of all of these responses are available at the DETR Library for public viewing. Members of the public wishing to view the responses should contact Simon Currey on 020 7944 6107.

The responses are summarised below according to the paragraph numbers from the consultation document.

Section I: The Domestic Initiative

Proposed Replacement Regulations on Access to Environmental Information (para 9 -11)
Many responses asked for greater clarification of the relationship between the access to environmental information regime and the access regime under the Freedom of Information Act 2000.

Definitions (para 13 -15)
The proposed new definition of 'public authority' is supported by the public sector and, in most cases, unwelcome to the private sector, particularly to those who believe that they will be now be covered by the regime for the first time. Some respondents, both private and public, requested greater clarification of the term to provide clarity about the scope of the bodies subject to the regime. Some thought a definitive list bodies subject to the regime would be appropriate. The privatised utilities pointed out that much environmental information is already supplied to regulators and that for them to also have to produce it on demand would be a duplication of functions. The costs would have to be passed on to consumers.

Requests and time limit for response (para 16 -19)
Respondents from all sectors expressed a preference for requests to be made in writing even though this is not consistent with the Aarhus Convention. Reasons included transparency, the avoidance of misunderstandings, easy reference and the provision of comprehensive responses.

Respondents in the public sector largely accepted the proposals for new time limits for response, although some suggested that the 20 working day limit in the Freedom of Information Act should be adopted for consistency. Both public and private sector respondents pointed out that there would be an increase in resources required.

Refusals (para 20 -22)
The proposed introduction of the public interest test in considering requests is generally welcomed although there is some concern over interpretation. For instance the private sector is concerned that public interest factors should not outweigh legitimate commercial interests.

Transfer of requests (para 23 -24)
Most respondents support the proposal to transfer requests for information or to inform the applicant where the original body does not hold the information sought. Both options were seen as important since some responses expressed concern over whether it would be possible to transfer the request to a new authority. Some particularly expressed a preference for the option of informing the applicant of the any other body believed to hold the information sought. There was some concerns about how the time limits would operate if the request was transferred to another authority.

Charges (para 25 -26)
All sectors support the option of making a reasonable charging for the supply of information. Some in both sectors consider it important to retain making any charge conditional on the supply of information ('charging in advance'). There is some support in the public sector for the proposal for a schedule of charges to be made public where a fee may be made.

Review Mechanism (para 27 -29)
There is general support on all sides for the proposed enhanced provisions for access to a review procedure and for using the Freedom of Information Act's Information Commissioner.

Section II: The European Commission's Proposal

Article 2(1) – Definition of 'environmental information' (para 36 -37)
Nobody takes issue with information on waste and radioactive waste being defined as environmental information. However, several respondents take issue with the precise wording of the definition although no consensus emerges. Some private sector interests believe they should be given credit for measures that they are already taking to grant access to environmental information and not forced to make what they see as costly changes.

Article 2(3) – Information Held for a Public Authority (para 38 -39)
Little reaction to this. One local authority simply agrees, another thinks applicants should be referred to the body for whom the information is being held. An NGO points out information is increasingly being held by a body other than the public authority.

Article 2(2) - Definition of Public Authority (para 40 - 42)
The Commission's proposal is supported by several public sector bodies and one NGO claims that the Commission's proposal is narrower than the definition in the Aarhus Convention. However, the consensus is that the Commission's proposal is unwelcome and is widely opposed by the private sector. Several private sector bodies pointed out that all relevant environmental information is already lodged with appropriate regulatory agencies and that any extension of the access to environmental information requirements would lead to costly duplication with no perceived benefit. It is pointed out that any additional financial burdens on utilities will be passed onto consumers. The Commission's proposal is also criticised for being unclear in scope.

Article 3(2)(a) – Time limits for response (para 43 -45)
Mixed reaction from both sectors on the Commission's proposal to tighten the time limits for response. Disagreement with the proposal is based on reservations about costs relating to technological and manpower resources. A majority from all sectors support the Government's view that the one month time period should begin again on a request being transferred to a new authority.

Article 3(3) – Requests made for a specific reason (para 46 -47)
Most respondents agree with the Government view that this proposal is unnecessary. Two respondents disagree, one on the grounds that the Government is assuming that the reason for having regard to the applicants reasons are temporal, and the other on the grounds that 'as soon as possible' is too vague a term and is open to interpretation. Many local authorities are concerned about resources needed to provide such information at speed.

Article 3(4) – Form or Format (para 48 -50)
Most respondents across all sectors object to this proposal and argue that it is impracticable although some accept that it may be possible at some time in the future. The biggest objection is on the grounds of cost which is deemed to be out of proportion to any benefit gained. Some complain that it could also increase the capacity of applicants to make unreasonable demands. Converting data from paper to electronic formats is, in respondents' experience, expensive, but converting from one electronic format to another is also costly. Several respondents mentioned GIS (Geographical Information System) data which comes in a vast range of formats. Others mention the problems of catering for people with obsolete software on old PCs.

As much historical data held by local authorities is on paper many are concerned about at what point in the past it is considered 'reasonable efforts' have been made to make it accessible through electronic means. Most respondents agree with the Government's view that the proposal appears to involve placing a more onerous requirement upon authorities. One NGO disagrees and considers this provision (in Article 3.1 of the Convention) to give too much flexibility to public authorities to avoid being helpful.

Article 4(1) – Information held by another authority (transfer of requests) (para 51 -52)
Most respondents agree with the Government that it is preferable to retain both the option a referral to another body, and also the option of informing the applicant directly of the authority which is believed to hold the information. Those that do not agree favour the latter option over the Commission's proposal. Some respondents point out that it may not always be possible to identify which body holds the environmental information sought.

Article 4(2)(d) – Commercial Confidential Exemption (para 53 -56)
All those that expressed a preference considered the Aarhus Convention definition of the commercial confidentiality exemption (Article 4(4)(f)) to be a better option than Commission's proposal. Some local authorities could accept the Commission's proposal but they are in the minority. Disagreement with the Commission's proposals is based on the grounds that considerable amounts of environmental information is provided by private companies on the understanding that it will remain confidential. It would constitute a breach of trust to release this information and adoption of the proposal could deter companies from divulging environmental information to local authorities in the future. This also has implications for regulatory bodies. In the private sector responses range from total opposition to expressions of concern and calls for careful consideration. It is pointed out that the proposals could be costly, have a detrimental effect on competitiveness and dissuade companies from entering markets, particularly in Member States not currently fully open to competition.

Article 4(2)(f) – Exemption from release for Personal Data (para 57 -58)
Little reaction to this. General agreement with the linkage of the exemption from release of environmental information for personal data with EC Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. No major disagreement expressed from any sector.

Article 5(1) – Charges (para 59 -60)
There is universal opposition from the local authorities to the proposal to prohibit advance payment of fees on the grounds of cost, both of collection and the prohibitive cost of recovering fees not paid. No responses opposed the proposal that charges should remain 'reasonable' although an NGO takes issue with the ill defined 'reasonable' cost cap which neither the Convention nor the Commission's proposals resolve.

Article 5(3) – Free access (para 61 -62)
Little response to this. Local authorities were happy with the proposal while some private sector companies expressed concern. The issue of information already being supplied to a regulator having to be duplicated by the holder was again raised.

Article 7(1) – Dissemination of environmental information (para 63 -64)
There is almost universal public and private sector opposition to the expansion of the proactive dissemination provisions of the 1990 Directive in the way proposed by the Commission. Even those public bodies that do support the proposal express concerns over cost. Of particular concern is the need to convert large amounts of archive documents into electronic format. With one exception, the private sector also considers the proposals to be unreasonable due to the considerable resources required. NGOs on the other hand either supported the proposal unconditionally or refused to offer comments until more was known on the cost implications. Little in the way of hard figures regarding costs was offered.

Article 7(3) – Information available in emergencies (para 65)
The dissemination of useful environmental information in the event of an imminent threat to human health receives general support from local authorities although one suggests such information should only be released to those responsible for dealing with the threat and not the press or the general public. With one exception this latter view is echoed by private business.

Views on the Partial Regulatory Impact Assessment
Several respondents commented upon the Partial Regulatory Impact Assessment, their comments largely reinforcing those made upon the main body of the consultation.

Very few respondents could supply hard figures on the potential costs of the various options for implementation but those that expressed a view agreed that they would be considerable.

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Published 5 February 2001

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Proposals for a Revised Public Access to Environmental Information Regime: Consultation Paper

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