Environmental Information Regulations 2004

The Environmental Information Regulations 2004 (EIR) is a UK Statutory Instrument (SI 2004 No. 3391) that provides a statutory right of access to environmental information held by UK public authorities. The regulations came into force on 1 January 2005.^[1] The regulations were made by the Secretary of State for Environment, Food and Rural Affairs under the authority provided by the European Communities Act 1972, entering into force on 1 January 2005, along with the Freedom of Information Act 2000. The Regulations cover most parts of the United Kingdom with the exception of Scotland, which is covered by the Environmental Information Regulations (Scotland) 2004 (EISR).^[2]

Origins

The Regulations are derived from European law. They implement the European Council Directive 2003/4/CE on public access to environmental information in the UK.^[3] The directive in turn has as its source the Aarhus Convention.

The Over-riding Objective

Although the Regulations contain much detail about what amounts to "Environmental Information", processes for obtaining access to it, charges that can be raised for provision, exceptions that can allow a data holder to refuse a request, etc., the main objective of the Regulations is encapsulated in Regulation 4 which requires the relevant data holder to engage in a proactive exercise to make the information available for inspection "by electronic means" which inevitably requires the data to be made publicly available online or via an electronic device (e.g. a computer terminal) in a public place. Recognising the reality of a wide diversity of information, the Regulations allow alternative formats, but require that they be "easily accessible" to the public. There is no denying that the principal obligation placed on holders of Environmental Information is public electronic dissemination.

Definition of 'Environmental Information'

Environmental information includes information about air, water, soil, land, flora and fauna, energy, noise, waste and emissions. Environmental Information also includes information about decisions, policies and activities that affect the environment.^[4]

It is accepted by the UK Government that most maps will contain environmental information.

The Information Commissioner has issued a series of consistent decisions regarding information required for conveyancing property searches, to the effect that such information is now recognised as being within the definition of Environmental Information.

In 2010 the UK government issued the Local Land Charges (Amendment) Regulations 2010 with the purpose of bringing the regime by which local land charge information was made accessible within the fee-charging limits imposed by the Environmental Information Regulations 2004. Such information (contained in the local land charges register held by most local authorities) had been accessible for a searcher in-person as prescribed by the Local Land Charges Regulations 1975 and the Local Land charges Rules 1977 upon payment of the "requisite fee". The requisite fee had been set by central government at £6, then £11, then £22, but the 2010 Amendment Regulations had the effect of making such access free of charge.

There has understandably been a backlash from persons and companies who searched and paid the requisite fee between 2005 (when the EIR came into effect) and 2010 (when the fee was abolished) and many are in the process of seeking a refund of monies they believe to have been charged unlawfully.

In 2012 and 2013 the Information Commissioner has continued to publish decisions that classify property search information as Environmental; this has clarified the position on "additional information" (i.e. information other than the contents of the local land charges register, such as building regulation and highways entries in council records) and there is now a body of decisions that confirm the extent that charges can be imposed for allowing persons to have access to such information; there can be no charge for allowing "access" or "inspection" notwithstanding that the council may have to process the information to make it accessible, the only charge that can be levied is the cost of "provision" if that is necessary, which means the reasonable cost of printing, copying and postage.

It remains to be seen whether further refund claims may be sought for this body of information, for which many local authorities still raise a charge that is based upon their cost of collation and assembly of the information into an accessible format. It seems a distinct possibility at the time of writing (April 2013).

Public authorities

The coverage of the Environmental Information Regulations is greater than that of the Freedom of Information Act 2000,^[5] although there are bodies such as the BBC which are covered by the Freedom of Information Act but not by the EIR. The Freedom of Information Act sets out a list of the bodies and classes of bodies that are public authorities, the EIR is less prescriptive.

MI5 acknowledge that they are covered by the EIR and have published Environmental Information on their website.^[6][7]

The regulations were originally interpreted by the Information Commissioner to include water companies^[8] however the Upper Tribunal has ruled that they are not subject to the Regulations.^[9][10]

This has now been superseded by the CJEU ruling^[11] which extends public authorities to a much wider definition including private companies

Requests under the regulations

One is that requests for information under the Regulations do not have be made in writing, they can be made verbally. The exemptions that public sector authorities can claim under the Regulations are structured somewhat differently as well. In many cases they are narrower in their scope and application. As with the Freedom of Information Act, public authorities have 20 working days from the receipt of a request to provide the information to the requester.

The Environmental Information Regulations are regulated by the UK Information Commissioner; the Scottish regulations are regulated by the Scottish Information Commissioner.^[12]

Repeal

Upon entry into force of these regulations, they repealed the Environmental Information Regulations 1992 and the Environmental Information Regulations (Northern Ireland) 1993 and two other statutory instruments that amended those regulations.

References

External links

• Statutory Instrument 2004 No. 3391 Environmental Information Regulations 2004
• Guidance on EIR from the Information Commissioner's Office
• Information on EIR in Scotland from the Scottish Information Commissioner
• Guidance on the EIR from Defra