Review of Day 3. The Environmental Information Regulations 2004 BCS CERTIFICATE IN FREEDOM OF INFORMATION - DAY 4

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1 BCS FOI Course: Day 4 The Environmental Information Regulations 2004 Welcome Please help yourself to a drink. The packs for day 4 are on the tables. We start at 10am. Review of Day 3 Access to Personal Data (S.40) Subject access Third party data and principle one DPA Fairness Access to dead peoples info (S.21,40 & 41) Commercial Information Section 41 and 43 Code on contract clauses Consultation before disclosure The Environmental Information Regulations 2004 Ibrahim Hasan

2 A Brief History EIRs have existed since 1992 (SI 3240) UK Government signed the Aarhus Convention in 1998 Covers a variety of environmental matters, including public access to environmental information A Brief History EU ratified section in Convention about access to information as an EU Directive in 2003 This is Directive 2003/4/EC UK ratified Directive in 2004 as Environmental Information Regulations 2004 In force on 1 January 2005

3 Important Documents The Environmental Information Regulations 2004 (SI 2004 No 3391) Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004 (Reg 16) FOI on EIR Section 39 Exempts information if the public authority holding it is obliged by regulations under section 74 to make the information available to the public in accordance with the regulations Qualified exemption Enforcement The Information Commissioner Christopher Graham

4 Enforcement and Appeals Regulation 16 ICO Duties = S.47 & 48 FOI Regulation 18 ICO powers and appeals = Part IV and V FOI Obligations Under EIR Are you a public authority? Do you hold environmental information? EIR APPLIES TO YOU Proactive Dissemination Reg16 Code of Practice Right of Access to Information Public Authority Government departments Public authorities under FOI Publically owned companies

5 Additional Bodies - any other body or other person, that carries out functions of public administration - any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and (i) has public responsibilities relating to the environment; (ii) exercises functions of a public nature relating to the environment; or (iii) provides public services relating to the environment. Information Information in written, visual, aural, electronic or any other material form not just documents Includes any sort of data photos, maps, plans, paper, electronic data, samples etc. What is environmental information? See Regulation 2

6 What is environmental information? Type Description Examples Elements Factors that affect on the environment Measures designed to affect the environment Reports on legislation Analyses State of human health & safety Air, water, soil, landscapes Energy, noise, waste, emissions Policies, legislation, plans Cost/benefit analyses related to measures Sanitation, food hygiene, state of buildings Condition of football pitches Energy usage at a local theatre Health and safety plan Health and safety reports Pool water testing information, hygiene reports for theatre café IC Decisions: Definition Other issues clearly within the Regs: Waste Recycling Location of mobile phone masts Noise issues Tree preservation orders Traffic, roads, traffic regulation Parking issues Road construction Demolition of buildings

7 IC Decisions: Definition A decision on minutes of meetings between DEFRA, Tesco and Asda includes a list of EIR topics: Waste and recycling Energy use Environmental impact of industry Animal by-products Sustainability across the food chain Organic food GM Food Sourcing of food Regulation of food production Obligations Under EIR Are you a public authority? Do you hold environmental information? EIR APPLIES TO YOU Proactive Dissemination Reg16 Code of Practice Right of Access to Information Proactive Dissemination Reg 4 Progressively make info available by electronic means which are accessible Reasonable steps to organise information to facilitate this - e.g. website search functions - Tree structures - EIR procedures

8 DIRECTIVE SAYS YOU SHOULD PUBLISH: a) texts of international treaties, conventions or agreements, and of Community, national, regional or local legislation, on the environment or relating to it; (b) policies, plans and programmes relating to the environment; (c) progress reports on the implementation of the items referred to in (a) and (b) when prepared or held in electronic form by public authorities; (d) the reports on the state of the environment (e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment; (f) authorisations with a significant impact on the environment and environmental agreements or a reference to the place where such information can be requested or found in the framework of Article 3; (g) environmental impact studies and risk assessments concerning the environmental elements referred to in Article 2(1)(a) or a reference to the place where the information can be requested or found in the framework of Article 3. Obligations Under EIR Are you a public authority? Do you hold environmental information? EIR APPLIES TO YOU Proactive Dissemination Reg16 Code of Practice Right of Access to Information

9 Right of Access a public authority that holds environmental information shall make it available on request (Reg 5(1)) Presumption in favour of disclosure (Reg 12(2)) Confirm or Deny unless would adversely affect international relations, defence, national security or public safety (Reg12(5)(a)) would be contrary to the Data Protection Act (Reg13(5)) would be manifestly unreasonable (Reg 12(4)(b)) Right of Access As soon as possible no later than 20 working days after the date of receipt Information must be up to date and accurate Excludes personal data of the requestor

10 Extension of Time (Reg 7) 40 working days (tell them within 20) Complexity and volume of information requested Not reasonably practicable to comply with request earlier or to make a decision Information Held (Reg 3) Information is held by a public authority if the information - (a) is in the authority's possession and has been produced or received by the authority; or (a) is held by another person on behalf of the authority Advice and Assistance Regulation 9 Request too general? Regulation 16 Code

11 Advice and Assistance (2) Provide examples of information that is available Provide access to catalogues or file plans Suggest options which the applicant can take up Send them to Citizens Advice Bureau Advice and Assistance (3) You should publish your procedures Consider publishing your review criteria Advice and assistance should not be used to determine the motivation of the requester Transferring Requests (Reg 10) Where requested info is held by another public authority: - transfer the request or - supply applicant with name and address of that authority Read Code (Section VI)

12 Form and Format (Reg 6) Applicant can express a preference Comply unless: Reasonable to make available in other format Already publically available and easily accessible in another format Charges (Reg 8) Must be reasonable Only ONLY cost recovery Must be published Applicant has 60 working days to pay Cannot Charge For: Access to public registers or lists of environmental info held by the authority Inspection of the information

13 Refusal Notice (Reg 14) Served notice within 20 working days stating : that information is exempt exception in question why exception applies factors considered Name of any other authority involved and when draft will be finished (Reg 12(4)(d) only) PI Test factors Details of internal complaints system Details of ICO The EIR Exceptions Regulations 12 and 13 Note - Presumption in favour of disclosure EIR Exceptions Class Based - Reg.12(4)

14 Information Not Held R.12(4)(a) PA does not hold the information when the applicant s request is received N.B - held at time request was received Regulation 19 Criminal Offence To alter, deface, block, erase, destroy or conceal any record with the intention of preventing disclosure Level 5 fine Personal and corporate liability Nuisance Requests R.12(4)(b) the request for information is manifestly unreasonable. FOI - vexatious and repeated requests

15 Upper Tribunal Cases Dransfield v IC (2012) UKUT 440 AAC Craven v IC (2012) UKUT 442 AAC Ainslie v IC (2012) UKUT 441 AAC Dransfield v IC (2012) UKUT 440 AAC Is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOI? Four (Non Exhaustive) Themes (1) the burden - on the public authority and its staff. (2) the motive - of the requester. (3) the value or serious purpose of the request. (4) any harassment or distress, of and to staff by the use of bullying language etc.

16 Request Too General R. 12(4)(c) the request for information is formulated in too general a manner and the authority has complied with regulation 9. Advice and assistance Drafts/Unfinished Data R. 12(4)(d) The request relates to material which is still in the course of completion, to unfinished documents, or to incomplete data. State date of completion/ if prepared by another PA state identity and date of completion Internal Communications R. 12(4)(e) the request involves the disclosure of internal communications. some protection for private thinking space and disclosure of advice

17 EIR Exceptions Prejudice Based - Reg.12(5) Regulation 12(5)(a) International relations Defence National Security Public safety Ministerial Certificate Regulation 15 Where disclosure would adversely affect national security and is not in public interest Certificate conclusive evidence

18 Justice - R.12(5)(b) The course of justice, the ability of a person to obtain a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature. Equivalent of FOI: S.30,31,32 and 42 Intellectual Property Rights R.12(5)(c) Patents, Trademarks and designs Unregistered rights, such as copyright, and unregistered design rights Confidentiality of Proceedings R. 12.5(d) The confidentiality of proceedings of that or any other public authority where such confidentiality is provided by law. proceedings include a range of investigative, regulatory and other activities carried out according to a statutory scheme.

19 Commercial Information R. 12(5)(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. Contract Issues Code says don t accept confidentiality clauses in contracts, and acknowledges that EIR obligations may override contract obligations Code says don t accept information in confidence unless it is necessary for the public function Consultation You should consult third parties unless 3 rd party info Third parties do not have a right to veto disclosure You don t have to consult if the cost would be disproportionate If you consult and get no response, you still have to respond

20 Voluntary Info - R.12(5)(f) Disclosure would adversely affect the interests of the person who provided the information where that person: (i) was not under, and could not be put under, any legal obligation to supply it to that or any other PA; (ii) did not supply it in circumstances such that that or any other PA is entitled apart from these Regulations to disclose it; and (iii) has not consented to its disclosure. Voluntary Info (2) The purpose of this exception is to ensure the free flow of volunteered information between citizens and regulators. (Defra EIR Guidance) Considerations would include the public interest in : a public body breaking an ethical/trust position on releasing data against a data owner s express desire what impact that breach of trust might have on other members of the voluntary community and the longer term supply of voluntary data to See Bridgenorth Council Decision (12/07/2005) Environmental Information Reg 12(5)(g): Where disclosure would adversely affect the protection of the Environment to which the information relates.

21 Emissions These exceptions do not apply to data about emissions: 12 (5) (d): Confidentiality of proceedings 12 (5) (e): Commercial confidentiality provided by law 12 (5) (f): interests of a person who provided information where they were not obliged to provide the information 12 (5) (g): the protection of the environment itself Personal Data Reg 12(3) & 13 Personal data need not be disclosed If disclosure breaches the principles, If it breaches Section 10 and disclosure is not in the public interest If disclosure would be covered by an exemption in the DPA, and the public interest is not in disclosure Whose information is being requested? Own info Third Party Info DPA S.7 FOI S.40(1) EIR Reg 5(3) FOI S.40(2) EIR Reg 12 & 13

22 Would disclosure breach one of the DP Principles? Is it fair and lawful (First Principle) Consent Is disclosure necessary in the legitimate interests of the data controller/requestor? Is the disclosure unwarranted by reason of the prejudice to the data subject? Harm of disclosure Circumstances in which the info gathered/created? Reasonable expectation of the subject Role, capacity, seniority of the subject Nature of the information (public life/private life) Historical and Transferred Public Records Regulation 17 Duty to consult Key EIR Differences 1. Additional bodies covered 2. No Publication Scheme (pro active dissemination) 3. Requests can be verbal 4. Cannot refuse on grounds of costs (no upper limit) 5. Can take 40 working days for large/complex requests 6. All exceptions subject to PI Test (except PD) 7. Some exceptions different e.g. internal communications and IPR

23 BCS CERTIFICATE IN FREEDOM OF INFORMATION - DAY 4

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