- General principles and rationale
- Can we neither confirm nor deny whether internal communications are held?
The EIR do not provide a definition of what constitutes an internal communication. Neither does the European Directive 2003/4/EC on public access to environmental information, from which the EIR are derived. This guidance explains how case law has helped to establish what type of information is covered by the exception.
The underlying rationale behind the exception is that public authorities should have the necessary space to think in private. The original European Commission proposal for the Directive COM(2000)0402 explained the rationale as follows:
It should also be acknowledged that public authorities should have the necessary space to think in private. To this end, public authorities will be entitled to refuse access if the request concerns… internal communications.
However, the exception is drafted to cover all internal communications, not just those actually reflecting internal thinking.
The exception has no direct equivalent in the Freedom of Information Act 2000 (FOIA). Arguments about protecting a private thinking space will be similar to those made under section 35 of FOIA: formulation of government policy, and section 36 of FOIA: prejudice to effective conduct of government affairs.
The exception does not allow you to neither confirm nor deny (NCND) whether you hold internal communications. You can only refuse to confirm or deny whether you hold environmental information if doing so would:
- adversely affect the interests in regulation 12(5)(a): international relations, defence, national security or public safety; and
- not be in the public interest.
The EIR differ in this respect from FOIA, where most exemptions include NCND provisions.