FOI/EIR EIR Section/Regulation Reg 2(1) Issue Defining environmental information
Line to take:

In deciding whether information is “environmental information” or not close reference must be made to the provisions of Regulation 2(1)(a) to (f).  It is not necessary for the information itself to have a direct effect on the environment, or to record or reflect such an effect, in order for it to be environmental. 

Further Information:

In some early cases the ICO adopted the approach that where a complaint was likely to have the same outcome under both FOIA and EIRs,  then an FOI Decision Notice should be issued stating this view but not making a formal decision as to whether or not the EIRs applied

Our approach now, on cases of this kind, is to always give full consideration to whether or not the information falls within the definition of environmental information.  If the information is found to be environmental then the decision should be made and any Notice issued under the EIRs.  It will not be acceptable to adopt the “same outcome rule” previously applied.

Where ever possible the decision on whether the information is environmental or not should be made based on a review of the actual information that has been identified as held by the public authority, rather than on an assessment of the request.  An assessment based on the wording of the request should only be made where this is unavoidable, for example where the public authority claims that information is not held *.  

The trigger for considering whether a request should be dealt with under the EIRs rather than under FOI will usually be that the information “looks” environmental or has an environmental feel. Whilst this may be a necessary starting point it should not be used as the final basis for treating the requested information as environmental and the following approach should be taken to validate that the EIRs do in fact apply.  It should also be noted that information that does not immediately “look” environmental could also fall under the EIRs when considered in detail.

Linking via the Regulations     

Close reference should be made to the provisions of Regulation 2(1)(a) to (f) and the information must be linked via the relevant section(s). However, it is not necessary for the information itself to have or to record or reflect a direct effect on the environment, in order for it to be environmental. 

To define as environmental information under 2(1)(a):

  • the information itself must be on the state of the elements of the environment.

To define as environmental information under 2(1)(b):

  • the information itself must be on a factor.
  • the factor (not the information itself) must affect or be likely to affect the elements in 2(1)(a).

To define as environmental information under 2(1)(c):

  • the information itself must be on a measure or an activity
  • the measure or activity (not the information itself) must affect or be likely to affect the elements and factors in 2(1)(a) and (b), or be designed to protect the elements in (a).

To define as environmental information under 2(1)(d):

  • the information itself must be on reports on the implementation of environmental legislation.

To define as environmental information under 2(1)(e):

  • the information itself must be on “cost benefit and other economic analyses and assumptions”
  • the “cost benefit and other economic analyses and assumptions” must be used within the framework of the measures and activities referred to in 2(1)(c).

To define as environmental information under 2(1)(f):

  • the information itself must be on one of the following :
    1. the state of human health and safety (which may include contamination of the food chain)
    2. conditions of human life
    3. cultural sites and built structures
  • the information is environmental inasmuch as the state of the elements in 2(1)(a) or, through those elements, the matters in 2(1)(b)&(c) may affect 1. to 3. above. 

The link back to 2(1)(a)

Using the linking process detailed above, each of the sections 2(1)(b)(c)(e) & (f) will ultimately link back to one or more element(s) under 2(1)(a) as follows:

 (b) must link back to (a)

 (c) must link back to (a), either directly or via (b)

 (e) must link back to (c), which in turn must link back to (a) either directly or via (b)

 (f) must link back to (a), either directly or via (c) and/or(b)

For example under 2(1)(f) it is not sufficient for information to be on the state of human health and safety, it must be on the state of human health and safety as affected by the state of the elements of the environment.  This may be a direct effect or via a relevant factor, measure or activity.  It should be noted that the linking process for 2(1)(f) is slightly different than for (b)(c)&(e) in that it works the opposite way around. I.e. the elements in (a) ultimately affecting the things listed in (f), rather than the things listed in (b)(c)&(e) ultimately affecting the elements in (a).

2(1)(d) is worded differently and does not require the same explicit linking process, rather it identifies a specific category of information. 

Defra’s guidance

Defra has recently updated its guidance on defining environmental information, and the current version broadly concurs with the ICO approach.

However, it should be noted that Defra’s previously published guidance on this issue suggested that in borderline cases, consideration should also be given to the principle of  “proximity/remoteness” and that, at least for information falling under 2(1)(c) to (f),  the information itself would have to have a direct effect on the environment.  Some public authorities may still advance arguments of this nature, however the Commissioner would not accept such arguments and would instead follow the line as set out in this LTT.

Defra credits its concept of proximity/remoteness in the Regulations on its interpretation of the judgement from the European Court of Justice case on breaches of the rules on labelling of foodstuffs produced from genetically modified organisms (GMOs), case C-316/01  Glawisching v Bundesminister fur sociale Sicherheit (2003).

ICO interpretation European Court of Justice Case C -316/01

It should be noted that the Glawischnig case related to the previous Directive in 1990 on access to information on the environment and as such this decision is not binding in relation to the current Directive .  The 1990 Directive was repealed in 2003 by Directive 2003/4/EC which, as recognised at para 5 of the Judgement, “contains a definition of environmental information which is wider and more detailed” than that in the previous Directive.

The 1990 definition stated the following:

a) 'information relating to the environment' shall mean any available information in written, visual, aural or data-base form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities (including those which give rise to nuisances such as noise) or measures adversely affecting, or likely so to affect these, and on activities or measures designed to protect these, including administrative measures and environmental management programmes;

The case concerned a request for information on complaints and administrative penalties related to an EC regulation (1139/98) on labelling of foodstuffs produced from GMOs.   The Court decided that the information requested was on a measure of control that was related to the activity of the placing on the market of foodstuffs.  

The court found that the information requested did not constitute information within the meaning of the 1990 Directive.  This was for the following reasons:

  • The requested information did not fall under the “state of” part of the definition
  • Information on the measure of control did not fall under the “affect or likely so to affect” part of the definition even if the activity did
  • The EC regulation on labelling foodstuffs was not designed as a measure to protect the environment and therefore the measure of control could not fall under the protect part of the definition

Our view is that this case may be helpful in highlighting the need to identify the particular measure or activity that the information is on, and the effect of that particular measure or activity (rather than another one) on the factors and elements in (a) and (b), but that it doesn’t suggest that the information itself must have a direct effect on the environment .  As the Court stated at para 25 the 1990 Directive “…is not intended…to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned in [the definition].  To be covered by the right of access it establishes, such information must fall within one or more of the…categories set out in that [definition].”

ICO view of the “ Tests” to be used

Our view is that a proximity / remoteness test as previously articulated by Defra does not apply.

We think that there is a proximity / remoteness style test, but that this is a test of the proximity / remoteness of the information itself to the relevant element, factor, measure, activity, analyses etc under 2(1)(a) to (f).  This “information on” test would apply in every case.   LTT82 provides further guidance on this point. 

Under 2(1)(a) and 2(1)(d) there will be no further test.

For 2(1)(b) (c) (e) and (f) there will also be a second test.  This will be a test to see whether the identified factor, measure, activity etc can ultimately be linked back to the elements of the environment under 2(1)(a).  This “linking” test is briefly outlined under the heading “The link back to 2(1)(a)” above.  There is a separate  LTT on “affecting or likely to affect” (LTT84).

* Defining as environmental information without viewing the information  

As stated above, wherever possible the decision on whether the information is environmental or not should be made based on a review of the actual information that has been identified as held by the public authority, rather than on an assessment of the request.  An assessment based on the wording of the request should only be made where this is unavoidable.

This is most likely to occur where:

  • the authority is claiming section 12 or section 14 of the FOIA or 12(4)(b) of the EIR, which will often be applied without locating the information
  • the authority states that it no longer holds the information
  • the authority states that it has never held such information or that the information does not exist

It may be useful to consider and /or ask the public authority the following types of question.

If the information is held:

  • Can a sample of information be provided?
  • How does the public authority hold the information and for what purpose is it held (e.g.  information is held by the planning department in a planning file)

In all circumstances:

  • Does the wording of the request suggest EIRs would apply (e.g. request for information about waste disposal)
  • Does the context of the request suggest EIRs would apply? (e.g. if the complainant has been corresponding with a public authority about a proposed building development and then asks for all for copies of correspondence between the public authority and the building contractor)
  • Has the complainant made arguments that suggest the information would be environmental?
  • The public authority in question (e.g.  DEFRA)

These suggestions may not help in every case, and shouldn’t be taken to mean, for example, that everything that DEFRA holds is environmental information. However considering the overall context in this way may assist in making a judgement in this situation.

Remember that “any information on” can be interpreted broadly (see LTT82). Therefore in many cases it will be obvious from the subject of the request that any information relating to it must fall under the EIR, for example, a request about a road building project.

Sometimes this will not be obvious, and the wording of the request may suggest that both environmental and non-environmental information would be included. In this situation, it may be necessary to issue a DN that makes findings in the following way: “to the extent that the information is or would be environmental …[and] to the extent that the information is not or would not be environmental …”

NB: LTT122 does not apply in this situation

 

Source Details
Policy team, line agreed in meeting with GS (18/05/07)
Related Lines to Take
LTT82, LTT83, LTT84, LTT122
Related Documents
Boundaries between EIR & FOI -Defra,  C-316/01Council Directive 90/31EEC & 2003/4/EC, Aarhus Implementation Guide
Contact LA / KP / RM
Date 28/04/2011 Policy Reference

LTT80