The impact of environmental issues is never far away – flooding, car emissions and renewable energy all affect our lives and make the headlines. Access to information about the environment allows everyone to understand more about the things which affect them. That is the purpose of the Environmental Information Regulations (EIR).
The EIR works similarly to the Freedom of Information Act (FOIA) but is actually a separate law based on a European Directive. Recent court cases have demonstrated areas where FOIA and EIR work differently. Today we’re publishing three updated pieces of guidance which, alongside the Guide to EIR, should help you to understand how the legislation works.
Here are the three areas the updated guidance covers:
Mobile phone masts, new homes and cash for farmers
The definition of environmental information in the EIR should be interpreted broadly. It covers any information which measures or affects the natural and built environment. This can include tests, reports, plans and policies on environmental issues.
That means EIR is the answer to what links phone masts, new homes and cash for farmers. All could be environmental information, with our guidance touching on the location and ownership of mobile phone masts, planning applications for new developments and subsidies paid to farmers.
Private companies, water companies and verderers
Most organisations covered by FOIA also have to comply with the EIR. But the right to environmental information includes other bodies, including some private companies. An organisation can be subject to the Regulations if its environmental functions are controlled by another public authority, and can also be a public authority in its own right if it has been given special legal powers to perform public functions.
In 2015, the Upper Tribunal ruled that the EIR applied to water companies because of their legal powers. We think it is likely the principles applied in that case mean similar utilities companies are also public authorities. It’s not just private companies who can be caught by the expanded definition – last year we issued a Decision Notice finding that the historic Verderers of the Forest of Dean are a public authority under EIR.
These additional criteria can be complex, and the law is likely to develop further as more cases appear before the tribunal. Our guidance sets out the approach the ICO will take when deciding whether bodies are public authorities.
Stamps, hours and websites
The rules on charging under EIR are slightly different from those under FOIA. Both laws allow public authorities to charge requestors for the actual cost of copying and posting information – sometimes known as disbursement costs. When responding to EIR requests, organisations can also recover the cost of staff time spent locating and preparing the information for disclosure.
We will focus our decisions on whether a charge is reasonable in the circumstances. The right of access to environmental information is an important one, and any charge must not have a deterrent effect on that right. Details of potential charges have to be available in advance of a request being made. The public must not be penalised if poor records management means high charges for locating information.
Organisations can’t charge for access to public registers or for allowing requesters to view information in person. This means, for example, that accessing information through an online facility should still be possible free of charge.
|Thomas Oppé is a Senior Policy Officer at the ICO. He has contributed to guidance on many different aspects on data protection compliance, including the ICO code of practice on anonymisation.Thomas also has a lead role in the promotion of Privacy Impact Assessments and has worked with several organisations in their implementation of PIAs.|