FOI/EIR EIR Section/Regulation Reg 2(1) Issue Threshold of likely to affect and may be affected
Line to take:

The threshold for “likely to affect” under 2(1)(b), (c)  is that the effect on the elements of the environment (assuming for 2(1)(c) that the measure/activity goes ahead) need not be more likely than not, but must be substantially more than remote.  The test under 2(1)(f) for “may be affected” is a lower test.

 
Further Information:

As discussed in LTT83 the “test” for “would be likely to affect” under 2(1)(c) is not a 2 part test and is only a consideration of the likelihood of an effect on the environment occurring if the measure/activity did go ahead.

When applying this test, the ICO considers that the threshold of likelihood will be similar to that in the FOI prejudice test as discussed by the Information Tribunal in John Connor Press Associates Limited vs The Information Commissioner (see LTT13). This will be that the likelihood of an effect on the environment if the measure /activity went ahead need not be more likely than not, but must be substantially more than remote.

Similarly under 2(1)(b) the threshold will be that the likely effect of the factor on the elements of the environment need not be more likely than not, but must be substantially more than remote. 

2(1)(f) provides that information on “the state of human health and safety, including the contamination of the food chain where relevant, conditions of human life, cultural sites and built structures” is environmental information “inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements by any of the matters referred to in (b) and (c)”

The ICO view is that “may be affected”  denotes a lower  threshold of likelihood. So there must be some likelihood of the state of human health and safety being affected by the elements of the environment  but this likelihood need not be substantially more than remote.

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Source Details
Policy Team
Related Lines to Take
LTT13, LTT80, LTT82, LTT83,
Related Documents
EA/2005/0005 (John Connor Press assoc)
Contact LA
Date 11/01/08 Policy Reference

LTT84