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What are the Environmental Information Regulations?

What are the Environmental Information Regulations?

In brief…

The Environmental Information Regulations 2004 provide public access to environmental information held by public authorities.

The Regulations do this in two ways:

  • public authorities must make environmental information available proactively;
  • members of the public are entitled to request environmental information from public authorities.

The Regulations cover any recorded information held by public authorities in England, Wales and Northern Ireland. Environmental information held by Scottish public authorities is covered by the Environmental Information (Scotland) Regulations 2004.

Public authorities include government departments, local authorities, the NHS, police forces and universities. The Regulations also cover some other bodies that do public work that affects the environment. For simplicity, all organisations subject to the Regulations are referred to as ‘public authorities’ in this guide.

The Regulations apply only to the environmental information held by public authorities. The Freedom of Information Act gives people access to most other types of information held by public authorities.

The Regulations and the Freedom of Information Act do not give people access to their own personal data (information about themselves), such as their health records or credit reference files. Individuals have a right of access to information held about them under the Data Protection Act 1998.


In more detail…


What are the Environmental Information Regulations for?

The Regulations are derived from European law. They implement the European Council Directive 2003/4/CE on public access to environmental information (the EC Directive) in the UK. The principle behind the law is that giving the public access to environmental information will encourage greater awareness of issues that affect the environment. Greater awareness helps increase public participation in decision-making; it makes public bodies more accountable and transparent and it builds public confidence and trust in them.

The source of the EC Directive is an international agreement called the ‘Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’. It was adopted in Aarhus, Denmark on 25 June 1998 and is known as ‘the Aarhus Convention’. Part of the Aarhus Convention says what its signatories must do to provide access to environmental information. The European Union and the United Kingdom have signed the Convention.

Article 1 of the Aarhus Convention states:

“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each party shall guarantee the rights of access to information, public participation in decision-making, and access to justice on environmental matters in accordance with the provisions of this Convention.”

What are the main principles behind the Environmental Information Regulations?

The Regulations give people a right of access to information about the activities of public authorities that relate to or affect the environment, unless there is good reason for them not to have the information. This is sometimes referred to as a presumption in favour of disclosure.

This means that:

  • everybody has a right to access environmental information. Disclosure of information should be the default – in other words, information should be kept private only when there is a good reason and the Regulations allow it;
  • an applicant (requester) does not need to give a reason for wanting the information. On the contrary, you must justify refusing them information;
  • you must treat all requests for information equally;
  • you should treat any information you release under the Regulations as if it were being released to the world at large.

This does not prevent you voluntarily giving information to people outside the provisions of the Regulations.

Are we covered by the Environmental Information Regulations?

The Regulations cover public authorities as defined by the Freedom of Information Act, in England, Northern Ireland and Wales. The public authorities listed in Schedule 1 of the Act are subject to the Regulations. Some public authorities are listed as subject to the Act only for specific types of information – these include the BBC, House of Commons, House of Lords and the Bank of England. As with the Act, the Regulations do not cover individual MPs, assembly members and councillors. If your organisation is not subject to the Regulations because it is listed in Schedule 1 only in relation to certain information, then you should handle any requests for environmental information under the Freedom of Information Act.

The Regulations also cover organisations that carry out ‘functions of public administration’; these functions do not have to relate to the environment – these could include private companies or public private partnerships. Bodies that are under the control of public authorities may also be included if they carry out functions that relate to the environment.

The way an organisation works or the way it controls information may change over time, so it is impossible to produce a complete list of bodies covered by the Regulations. If you are not listed under Schedule 1 of the Act, you must decide whether you are a public authority covered by the Regulations, based on your functions.

When is information covered by the Environmental Information Regulations?

The Regulations will cover any recorded information you hold that falls within the definition of ‘environmental information’. It is not limited to official documents or information you create – it can cover, for example, drafts, emails, notes, recordings of telephone conversations and CCTV recordings.

Unlike the Freedom of Information Act, the Regulations do not explicitly exclude information that you hold solely on behalf of another person or body. The Regulations say that any information that is in your possession that you have produced or received is considered to be ‘held’.

However, our view is that information is in your possession only if you hold it to any extent for your own purposes. For the purposes of the Regulations, information you merely store for someone else would not be considered as being held, for example, information stored on a work computer or email account solely on behalf of a trade union or an MP or councillor. Similarly, we would not consider information a member of the staff produces for their own personal use to be produced or received by you, even if it is on your organisation’s premises or computer systems. For example, if a member of staff uses the public authority’s email system to send a personal, non-work related email, it will not be considered as held for the purposes of the Regulations.

For the purposes of the Regulations, you are still considered to hold environmental information that another person holds on your behalf. For example, where you subcontract public services to an external company, that company may then hold environmental information on your behalf, depending on the type of information and your contract with them. If you receive an information request, some of the information the external company holds may be covered by the Regulations. The company does not have to answer any requests for information it receives, but it would be good practice for them to forward the requests to you. The same applies where you receive services under a contract, for example, if you consult external solicitors.

When work related emails are sent using private email accounts and this results in official information being stored on private non-work email accounts, this information will be held for the purposes of the Regulations.

The Regulations do not cover information that is in someone’s head. If a member of the public asks for information, you only have to provide information you already have in recorded form. You do not have to create new information or find out the answer to a question.

The Freedom of Information Act includes some specific requirements to do with datasets. For the purposes of the Act, a dataset is collection of factual, raw data that you gather as part of providing services and delivering your functions as a public authority, and that you hold in electronic form. The Regulations do not contain any specific provisions about datasets. However, this Guide explains when the dataset requirements of the Act are relevant to environmental information.

For further information, read our more detailed guidance:

Is the information ‘environmental information’?

Usually, it will be obvious when requested information is environmental – for example, information about land development, pollution levels, energy production, and waste management.

However, sometimes information may seem like environmental information but it does not fall under the definition of ‘environmental information’. For example, information about how the population levels of a particular species of bird affect the population levels of a species of insect will be environmental information, because it is information on the balance between species or ‘biological diversity and its components’. However, although information about the living conditions of domestic animals may seem similar, it won’t qualify as information on ‘biological diversity and its components’ because it doesn’t say how those living conditions affect the balance between species.

Similarly, sometimes information might not seem to be obviously environmental but could still fall under the definition. For example, financial information would be classed as environmental information if it related to the costs of redeveloping land and building a new leisure complex.

For this reason it is important to refer to the full definition of environmental information provided at regulation 2(1) before making a final decision on whether information is environmental or not and which legislation applies.

For further information, read our more detailed guidance:

Who can make a request for information under the Environmental Information Regulations?

Anyone can make a request for information under the Regulations. Requests are often made by people concerned about local issues, journalists, researchers, scientists, lawyers on behalf of clients, MPs, campaign groups, or companies. Requesters should direct their requests to the public authority they think will hold the information.

For further information, read our more detailed guidance:

What are our obligations under the Environmental Information Regulations?

You have two main obligations under the Regulations. You must:

  • make environmental information available proactively, using easily accessible electronic means whenever possible; and
  • respond to requests for environmental information.

In addition to these legal obligations, there are two codes of practice that recommend good practice for complying with the Regulations.

The Code of practice on the discharge of the obligations of public authorities under EIR (the EIR code of practice) sets out good practice recommendations for you to follow in meeting your obligations under the Regulations. It sets out the situations when you should give advice and assistance to requesters, guidelines on making information available proactively, and considerations that may affect your relationships with other public bodies or third parties.

The section 46 code of practice covers good records management practice and the obligations of public authorities under the Public Records Act. This is relevant to the Environmental Information Regulations and the Freedom of Information Act.

These codes of practice are not directly legally binding, but failure to follow them may be relevant when deciding whether an organisation has complied with the Regulations. For example, if you follow the steps set out under part III of the EIR code of practice about advice and assistance, it is likely that you will comply with your obligations under Regulation 9.

For further information, read our more detailed guidance:

What do we need to tell people about the Environmental Information Regulations?

Publicly available information is only valuable if people know they can access it and know what is available. You should:

  • publicise your commitment to proactive publication and the details of what is available;
  • publicise the fact that people can make requests for information to you;
  • provide contact details for making a request, including a named contact and telephone number for any enquiries about requesting information.

You should also make your staff, contractors or others you have contact with aware of how the Regulations may affect them. You should make clear that you cannot guarantee complete confidentiality of information, and that as a public body you must consider releasing any environmental information you hold if it is requested.

How do the Environmental Information Regulations affect data protection?

The Data Protection Act gives rules for handling information about living, identifiable people. It includes the right for people to access their own personal data.

The Information Commissioner’s Office regulates the Freedom of Information Act, the Data Protection Act and the Environmental Information Regulations.

The Environmental Information Regulations don’t provide a right of access to a person’s own information. If someone makes a request for their own personal information, you should deal with it under the Data Protection Act. A request for an individual’s own personal data is called a ‘subject access request’.

The Data Protection Act protects people’s right to privacy and ensures that personal data is processed with care and only when necessary. The Environmental Information Regulations on the other hand are about openness and transparency in environmental matters. These two aims are not necessarily incompatible, but there can be a tension between them, and applying them sometimes requires careful judgement.

When someone makes a request for information that includes someone else’s personal data, you will need to carefully balance the case for transparency and openness under the Environmental Information Regulations against the data subject’s right to privacy under the Data Protection Act in deciding whether you can release the information without breaching the data protection principles.

See When can we refuse a request for environmental information? and our more detailed guidance:

How do the Environmental Information Regulations relate to the Freedom of Information Act?

The Regulations provide a separate right of access to information about the environment. All other types of information are covered by the Freedom of Information Act. When you receive a request, you need to consider whether the information that has been asked for is environmental or not, and then deal with the request under the appropriate legislation.

There are similarities between the two regimes for accessing information, but there are some important differences. It is essential that you deal with requests under the correct regime.

However, if you are subject to the Freedom of Information Act but not the Environmental Information Regulations, you should handle all requests under the Freedom of Information Act. See Are we covered by the Environmental Information Regulations? for more detail.

For further information, read:

How do the Environmental Information Regulations affect copyright, database rights and intellectual property?

Access to environmental information under the Regulations does not affect any copyright, database rights or intellectual property rights that give owners the right to protect their original work against commercial exploitation by others.

If someone wishes to re-use public sector information for commercial purposes, they should make an application under the Re-use of Public Sector Information Regulations. See the Public Sector Information FAQs from the National Archives for more information on this. The ICO does not have any powers to regulate copyright or the re-use of information.

When giving access to information under the Regulations, you cannot place any conditions or restrictions on that access. For example, you cannot require the requester to sign any agreement before they are given access to the information. However, you can include a copyright notice with the information you disclose. You can also make a claim in the courts if the requester or someone else uses the information in breach of copyright. The ICO encourages public authorities to use the open government licence provided by the National Archives.

Generally, copyright, database rights and intellectual property rights should not prevent a public authority disclosing information under the Regulations. However, the Regulations differ from the Freedom of Information Act in that they include an exception to disclosure where releasing information would adversely affect intellectual property rights (regulation 12(5)(c)) – for further information see When can we refuse a request for environmental information?

What other laws to we need to take into account when applying the Environmental Information Regulations?

As well as the Freedom of Information Act 2000 and the Data Protection Act 1998, the Regulations interact with the Infrastructure for Spatial Information in the European Community Regulations 2009 (INSPIRE), which came into force on 31 December 2009.

The duty under INSPIRE to make spatial data sets (sets of data linked to geographical locations) publicly available in a consistent and useable electronic format, overlaps with the duty under the Environmental Information Regulations to make environmental information available proactively using easily accessible electronic means. However, not all information covered by INSPIRE will be environmental information, and lots of environmental information will not qualify as a spatial data set.

If you work in a local authority, you will need to be aware of the relationship between the Environmental Information Regulations and the Local Authorities (England) (Charges for Property Searches) Regulations 2008 (‘the CPSR’). The CPSR provide a framework that permits local authorities to charge for property-search services. However, the charging provisions of the CPSR do not apply where a local authority:

  • can charge for access to property records; or
  • has to provide access free of charge under another enactment.

Much of the information local authorities provide in response to property-search enquiries is likely to fall under the definition of environmental information, so it will be subject to the charging provisions in the Environmental Information Regulations rather than the CPSR. The Environmental Information Regulations give a public authority the discretion to charge a reasonable fee for making environmental information available, and set out the circumstances under which it cannot charge.

For further information, read our more detailed guidance: