Tag Archive for Environmental Information Regulations

EIR charges curbed by ICO

FOIMan reports on a move by the Information Commissioner to clamp down on charges for environmental information.

Wind turbine in countrysideA new decision from the Information Commissioner moves the regulator’s position on charges under the Environmental Information Regulations (EIR) on from the policy announced in 2016. If the decision stands, it means that public authorities will not be able to charge for environmental information if they wouldn’t be able to charge for it under the Freedom of Information Act (FOIA).

In a decision issued to Folkestone and Hythe District Council the Commissioner  has ruled that a charge of £325 to access environmental information was not reasonable. In effect, the ICO’s decision sets out that it cannot be reasonable to charge for environmental information below the appropriate limit set out in the FOIA fees regulations. Although the fees regulations do not directly apply to EIR, the Commissioner’s view is that the appropriate limit (of £600 for central government and £450 for other public authorities) provides a useful starting point when considering charges under the regulations.

More generally, the ICO are keen to reduce inconsistencies in charging policies in relation to environmental information. In a blog post accompanying the decision, Gill Bull, the ICO’s Director of Freedom of Information states that authorities should avoid routinely charging for environmental information, and is unlikely to be sympathetic when charges are made for information falling beneath the appropriate limit. She links the decision to Parliament’s declaration of a ‘climate change emergency’, pointing out that it is more important than ever for people to be able to play a full and informed part in debate about the environment. This should not be hampered by financial barriers, she argues.

This decision emphasises the important relationship between access to information and the major issues that face society. The ICO will be updating their guidance later in the year to reflect this change in approach.

Are Housing Associations subject to EIR?

FOIMan highlights an FTT decision which provides the latest word on accessing information from housing associations.

Despite governments undertaking to examine the addition of housing associations to the Freedom of Information Act’s (FOIA’s) coverage, it has yet to happen. The Information Commissioner is the latest to call for this change.

There has been debate though as to whether Housing Associations are subject to the Environmental Information Regulations (EIRs). Generally the Information Commissioner has decided not, but last year she put the cat amongst the proverbial pigeons with a decision that an East London housing association was subject due to its ‘special powers’. Lynn Wyeth wrote an excellent piece in the Freedom of Information Journal in the Autumn comparing the Commissioner’s decisions on this issue and seeking to explain why the decision in relation to Poplar Housing and Regeneration Community Association (Poplar HARCA) was different. In summary: it’s complicated.

Well, the FTT has now decided that perhaps it isn’t complicated after all: they’ve upheld Poplar HARCA’s appeal and have concluded that it is not subject to the EIRs. In the course of the appeal, the Commissioner in fact suggested that she’d got it wrong in an earlier case (Richmond – FER0700353), which explained the variation. The FTT agreed that the Commissioner had got it wrong, but in their view it was the Poplar decision that was incorrect. 

As with a lot of disputes over the coverage of the EIRs in the last few years, the case revolved around the Fish Legal case that was referred to the European Court of Justice in 2014. That case examined the definition of public authority at regulation 2(2)(c) of the EIRs and the underlying Directive. It concluded that to ‘carry out functions of public administration’, a body had to have been ‘entrusted with the performance of services under a legal regime’; the services had to be of public interest; and it had to have been vested with ‘special powers’ in order to provide those services.

In the Poplar case, the FTT found that Fish Legal had defined ‘legal regime’ as meaning that there had to be a national law entrusting the body with the performance of those services. This was where the ICO’s case fell down: the FTT could not identify such a law. Without the ‘narrow’ definition of a legal regime set down in Fish Legal, the FTT would have taken a different view – but effectively its hands were tied.

For now then, private housing associations will not be subject to FOI nor the EIRs. Until the government either chooses to extend FOI and the EIRs to them, or inadvertently entrusts them with performance of services under another national law. Or until there is a successful appeal to the Upper Tribunal – whichever of these is sooner.

 

EIRs: the exceptional regulations

FOIMan completes his exploration of the EIRs with an article on the reasons why requests for environmental information can be refused.

Just as with FOIA, requests for environmental information held by public authorities can be refused in specified circumstances. For the last few issues of PDP’s Freedom of Information Journal, I have been writing about the EIRs, and in the last of the series (available here) I look at the exceptions that can be used to justify withholding environmental information.

I’ve brought all three articles together to form a Guide to the Environmental Information Regulations so that you can easily access them at any time. This can be found in the drop down list under the ‘Free Resources’ section of the FOIMan site. All my PDP articles can also be found there on the ‘Articles’ page.

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.