New right to know laws 

On 1 January 2005, the right to know provisions of the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 came into force. These two pieces of legislation greatly increase our rights to access information held by public authorities in the UK. Knowing how to make use of these powerful new rights is an essential tool for anyone who campaigns for a better environment. Phil Michaels provides an overview.  

Both the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) impose a basic duty on every public authority to provide information which it holds, or which is held by another on its behalf, when it receives a request. A few key features of the new legislation are worth remembering:

• Time Limits The authority must provide the information as soon as possible, and at the very latest within 20 working days (four weeks). This is twice as fast as under the old environmental information regulations. The requirement to provide the information ‘promptly’ or ‘as soon as possible’ is set down in law and authorities should be reminded of their obligation. 
• Retrospective The legislation is wholly retrospective applying to all information held by the authority regardless of when it was created or when it came into its possession.
• Advice and assistance A public authority is legally required to provide advice and assistance to the person requesting information or proposing to request information. 
• Exemptions Information may only be refused where one of the legally defined exemptions applies. In addition, in most cases (all cases for environmental information), information may only be refused where the public interest in withholding the information outweighs the public interest in releasing it. 
• Form and format Information must, so far as possible, be provided in the form and format in which it is requested, for example, electronically, in database form, or on paper copies. 
• Right of appeal There is a free right of appeal to the Information Commissioner (see below). 

Whilst both sets of legislation share many features (including the above), the provisions of the EIR provide much stronger rights, and cover a broader range of bodies, meaning that a request under EIR will often prove more advantageous. If the information requested is ‘Environmental Information’ for the purposes of the EIR, then the authority must not apply the FOIA(1), and must apply the EIR. By contrast, if the information is not ‘environmental information’ then it must be dealt with under FOIA and not under the EIR. 

What is environmental information?
The definition of Environmental Information in the EIR is very broad, and much wider than in the previous (1992) regulations. It includes not only the state of the elements of the environment such as land and water and discharges and emissions to the environment, but also information about policies, plans, programmes and activities affecting or likely to affect the environment. Furthermore, it explicitly includes cost-benefit and other economic analyses used in environmental decision making. Finally, and of particular importance for those with an interest in pesticides, it includes information on the state of human health and safety and contamination of the food chain where they may be affected by the state of the environment. 
    The breadth of the definition is very important information for members of the public and NGOs wishing to influence policy and decision making, but is precisely the type of information which, in the past, has proved extremely difficult to obtain. The vast majority of information which readers of this journal may wish to obtain will be environmental information obtainable under the EIR. For that reason the rest of this article will focus on the EIR. 
    Ultimately, the question of whether the information is environmental is an objective one, for the courts to decide, not a subjective one, for the authority to determine. However, where there is any doubt it is worth remembering that the case law in Europe and the UK (under the old environmental information legislation) has repeatedly emphasised that those categories should be interpreted very widely. 

The position of water companies
Under the FOIA, only ‘traditional’ public bodies are covered, such as government departments, local authorities, and agencies such as the Environment Agency and the Pesticides Safety Directorate. The EIR also applies to these bodies, but in addition applies to ‘any other body or other person, that is under the control [of a public authority] and […] (ii) exercises functions of a public nature relating to the environment’. This would include, for example, private water companies and certain waste disposal companies. The effect of this is that it is open to members of the public to request environmental information directly from water companies rather than having to rely on information which those companies have provided to the Environment Agency or other public authorities. 

Environmental Information Regulation exemptions Regulation 12(4) subject to the public interest test, authorities may refuse to disclose information to the extent that:  the information requested is not held by or for the authority at the time when the request is received the request is manifestly unreasonable the request is formulated in too general a manner and the authority has complied with its duty to assist the applicant to reformulate the request (see para [4.4]) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data the request involves the disclosure of internal communications.  Regulation 12(5) subject to the public interest test, authorities may refuse to disclose information to the extent that its disclosure would adversely affect: international relations, defence, national security or public safety the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature intellectual property rights the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest the interests of the person who provided the information where that person- i. was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority ii. did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it, and iii. has not consented to its disclosure the protection of the environment to which the information relates. In these cases the authority must be satisfied that the release of the information would genuinely adversely affect the protected interest (in addition to satisfying itself as to the public interest test).  NOTE: the exceptions that are marked in italics MAY NOT be relied on to refuse information relating to ‘emissions’.

Can an authority refuse to provide the information?
The EIR has no ‘absolute exemptions’. All exemptions under the EIR are qualified by a ‘public interest’ test such that even where exemptions apply the information must still be released on request unless the public interest in upholding the exemption outweighs the public interest in releasing the information. In every instance it is up to the requester, to make the case the other way. The exemptions under the EIR are set out in the box.

The public interest test
This public interest test is central to the operation of the EIR, and is likely to be the focus of many challenges. In the past, public authorities have accorded great weight to the public interest in keeping the information secret. However, the EIR makes it clear that this attitude must change. Firstly, it explicitly requires a public authority to ‘apply a presumption in favour of disclosure’2. Secondly, the EIR is the means by which the UK seeks to comply with the provisions of the Aarhus Convention3. The fundamental premise of this Convention is that environmental decisions are best made with the full and effective participation of the public, and for that, the public must have access to information on the environment. As such, the Convention (and therefore the EIR) is incompatible with a culture of secrecy and an attitude of ‘need to know’ on the part of public authorities. 
    It is also important to note that the decision of where the public interest lies must be made by the authority on a case by case basis. So even where a request is made for information that the authority had previously held that it was in the public interest to refuse, they must consider the question anew: circumstances may arise, for example evidence emerges that a particular active ingredient leaches into groundwater, which will increase the public interest in having access to that information, thereby requiring the authority to release it. 
    It is important to note that exceptions apply to ‘information’, rather than documents or records. Where only a part of a document contains some information that can be refused, the authority may remove or redact that part, but must disclose everything else.

Cost
In most cases those requesting information should only have to pay for copying and postage costs. There are complex regulations under the FOIA which prevent public authorities from charging for their time in the majority of cases. These regulations do not apply directly to the EIR. Under the EIR there is simply a requirement that charges must be reasonable. In most cases, any charges above copying and postage will not be reasonable and can be appealed to the Information Commissioner.

A simpler system
Individuals in the UK concerned about the effects of pesticides and other chemicals on human health and the environment have faced an uphill struggle to obtain information from regulatory bodies. In September 2004 Pesticides News described the problems Friends of the Earth had when trying to obtain information about glufosinate ammonium from the Pesticides Safety Directorate (PSD) in 2001. PSD argued this was commercially sensitive, and only agreed to release when threatened with legal action. There are several layers of legislation at European and at national level, governing the control of information on pesticides. Those without the legal know-how and the financial resources to launch judicial review procedures have often been denied access to information to which they were legally entitled.
    The new EIR should improve things. Although the complex legislation mentioned above still exists, when an individual requests ‘Environmental Information’, the EIR expressly states that any ‘enactment or rule of law that would prevent the disclosure [of that information] shall not apply’4. So any refusal can only be made under the terms of the EIR as set out above. This, combined with the free right of appeal to the Information Commissioner, should make the refusal easier to challenge.
    This legislation represents a very powerful tool to hold corporations and governments to account, and to protect human health and the environment. However, the effectiveness of that tool depends on campaigners, journalists, and private individuals making well-crafted, effective requests and, if refused the information, challenging that refusal before the Information Commissioner. Above all, it requires persistence. 
    More detailed information and guidance on these regulation can be found at www.RightToKnowOnline.org. 

1. FOIA 2000, Section 39.
2. Regulation 12(2).
3. The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed at Aarhus on 25 June 1998.
4. Regulation 5(6).

Phil Michaels is Legal Adviser to Friends of the Earth, and is author of the Right to Know Handbook available at www.RightToKnowOnline.org. 

[This article first appeared in Pesticides News No. 67, March 2005, page 3]