Tag Archive for EIR

Same thing, different gravy? The EIRs Part II

FOIMan examines the similarities and differences between FOIA and the Environmental Information Regulations.

A few months ago I started a series in PDP’s Freedom of Information Journal on the Environmental Information Regulations (EIRs), starting with an examination of the definition of environmental information. Here I bring you the second instalment in the series which looks at how FOIA and the EIRs differ.

I’ve just written the third and final part in the series which covers the exceptions in the EIRs. You’ll be able to read that in the next issue of the journal or right here on the FOIMan site later in the summer. Once they’re all available, I’ll put them all in one place in the Resources section so they will act as a comprehensive guide to the EIRs.

Down the rabbit hole – the EIRs

FOIMan begins an exploration of the Environmental Information Regulations.

The rabbit hole in question is also known as section 39 of the UK FOI Act (and also of the Scotland Act, for that matter), which leads, of course, to the Environmental Information Regulations 2004 (EIRs). It always seems to me that the EIRs are somewhat neglected so I’ve chosen to devote a series of articles for PDP’s Freedom of Information Journal to an exploration of them.

In the first in the series – available here – I look at why there are separate regulations covering environmental information at all, and what exactly is environmental information. The next piece will look at the main differences between FOI and the EIRs, whilst the last piece will examine the exceptions. You can read the whole series by subscribing to the Freedom of Information Journal (external link) or just by keeping an eye out for the later articles here on the FOIMan website (and you can ensure you don’t miss them by subscribing to FOIMan posts via the box in the column on the right).

If you want training on the EIRs, I can provide this in-house – just get in touch for a quote. Or you can attend one of the courses I’m running for Act Now Training (external link) later this year.

When can public authorities charge for FOI requests?

FOI Man looks at when a public authority is allowed to charge for FOI requests, and how such charges must be calculated.

Some further education institutions appear to be charging for FOI requests. In one case, the college is routinely charging £75 per request. In another, they are charging £25 per hour. Let’s be clear, this is NOT legitimate.

What can public authorities charge? Well, if they estimate that providing the information will cost more than ‘the acceptable limit’  (currently £600 in central government or £450 for all other authorities),  then they have a choice of either refusing to provide the information (in line with s.12 of the Act) or charging the full estimated cost. In estimating the cost, they can only consider the time and money it would take to:

  • determine if they hold the information;
  • locate the information;
  • retrieve the information; and/or
  • extract the information from a document containing it.

They can’t include redaction or time spent considering exemptions in their estimate of the cost. In estimating the cost, they have to calculate staff time on the basis of £25 an hour – the regulations stipulate this. This figure, of course, appears to be the basis of one of the colleges’ confusion. It’s also the basis of the rule of thumb that public authorities (outside of central government) operate of the ‘time limit’ for FOI being 18 hours (£450/£25=18). (It’s obviously 24 hours in central government – £600/£25=24).

They are allowed to charge  ‘disbursements’ for things like photocopying, paper, CD-ROMs etc. for any request. This right is very rarely exercised in my experience, but may be on the rise in the current climate.

The Environmental Information Regulations (EIR) are subtly different, but in effect, largely the same. Charges can be made, but case law has made clear that this is really only for disbursements again (photocopying, printing, etc). There is no direct  s.12 equivalent allowing refusal on grounds of cost, but often authorities will argue that the exception (the EIR term for an exemption) for requests which are ‘manifestly unreasonable’, can be used to refuse requests which will be expensive to comply with.  DEFRA’s guidance and case law appear to support this.

In summary, public authorities cannot charge a standard fee for FOI or EIR requests – they can only charge for disbursements or for requests which cost more than the ‘acceptable limit’ (£600 for central government; £450 for all other public authorities). At least, that’s the situation at present – it remains to be seen whether the outcome of the Government’s post-legislative review of FOI will be changes to the charging arrangements for requests.

Is FOI purpose-blind?

Is a public authority allowed to question why you want information? FOI Man investigates.

It’s a standard mantra that we’ve all got used to trotting out, both within and outside of public authorities. All FOI requests should be dealt with irrespective of who has sent them and why they want the information. But just what is this based on?

The truth is that there is no directly stated requirement of this kind in the Act. As the Information Commissioner’s guidance states:

“There is no specific reference in the FOIA or the EIR to the principle that the identity of the requester should be ignored, but it is the absence of references in the legislation to the identity of the applicant from which the general principle is drawn.”

The same goes for the reason as to why the request is made (although the European Directive on which the EIR is based does say that applicants shouldn’t have to declare an interest). It’s really just that it is a practical inference from the way the legislation is drafted that as the authority is under an obligation to disclose requested information to anyone who asks, it shouldn’t matter who they are or why they are asking.

So if an authority does ask you why you are making a request, they’re not strictly contravening the Act. It is pretty broadly accepted that it is bad practice though. The Commissioner and anyone else looking at an appeal further down the line would undoubtedly take an adverse view of such questioning unless it could be justified. Which is probably why the s.45 Code of Practice says:

“Care should be taken not to give the applicant the impression that he or she is obliged to disclose the nature of his or her interest as a precondition to exercising the rights of access, or that he or she will be treated differently if he or she does (or does not).”

Having said that, it would be well worth you having a chat with an FOI Officer/member of an authority’s staff who does ask you why. It may well be that they are trying to (albeit clumsily) provide advice and assistance by establishing what you really want to know. It could be that your request hasn’t been clear enough, or that they think you’re asking the wrong question and want to point you in the right direction. But I’ve always trained staff to try to avoid the ‘why’ question because of the potential for misunderstanding.

So in summary, it’s a bad idea for authorities to ask you why you’re making a request, even though it isn’t directly prohibited by the Act (or the EIR). Thanks to Ross Pollard (@ishbroken on Twitter) for asking the question.

FOI, Datasets and the Protection of Freedoms Bill

A little while ago, Ibrahim Hasan of Act Now Training kindly asked me to write a piece for their Information Law Newsletter. It appears in the latest issue which has been published today.

In summary, I talk about the proposed amendments to the UK Freedom of Information Act in the Protection of Freedoms Bill. The piece covers what datasets are (also covered in more depth by Ibrahim in another piece elsewhere in the Newsletter), what practical steps we should be taking, and finally calls for FOI Officers to get more involved in open data projects in their organisations.

There are also pieces in the Newsletter from Emily Goodhand, better known as @CopyrightGirl on Twitter, who wrote a couple of great guest posts here and here a few months ago, and Jonathan Baines, an Information Rights Specialist at Buckinghamshire County Council, who writes about the Environmental Information Regulations.