About this detailed guidance
This guidance discusses regulation 12(5)(g) in detail and is written for use by public authorities. Read it if you have questions not answered in the Guide to the EIR (Environmental Information Regulations), or if you need a deeper understanding to help you apply this exception in practice.
- What do the EIR say?
- When can we use this exception?
- What would an “adverse effect” be?
- What should we consider when carrying out a public interest test?
- What else should we consider?
Regulation 12 of the EIR states:
(5) a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—
(g) the protection of the environment to which the information relates.
Like most EIR exceptions, this is a qualified exception. That means that, even if the exception applies, you must still consider the public interest test set out in regulation 12(1)(b). You can only withhold the information if the public interest in maintaining the exception outweighs the public interest in disclosing the information.
Regulation 12(2) states that you must apply a presumption in favour of disclosure. That means that if the public interest factors are evenly balanced, you must disclose the information.
Regulation 12(9) states that you cannot use this exception to withhold information on emissions.
You can use this exception to withhold information if disclosure would be harmful to the protection of the environment.
Making environmental information available to the public ultimately contributes to a better environment. This is because it increases people’s awareness and understanding of environmental issues. This important principle underpins the EIR.
However, there may be situations when disclosing the information would actually have an adverse effect on the environment. The EU Directive 2003/4/EC, from which the EIR originally derive, says that a request may be refused if disclosure of the information would adversely affect “the protection of the environment to which such information relates, such as the location of rare species” (Article 4(2)(h)).
If you hold information about the breeding site of a rare bird species and disclosing the location of the site would expose the site to interference or damage, then disclosure could adversely affect the protection of the environment. If that is the case, regulation 12(5)(g) would likely apply.
What are the elements of the environment?
The exception refers to “the protection of the environment”. Regulation 2(1)(a) of the EIR defines “the environment” as:
“… the elements of the environment such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements”
This definition is wide-ranging and is not an exhaustive list of the elements that make up the environment. Our guidance document on What is environmental information provides a further explanation of what is covered by the elements of the environment.
The list of the elements of the environment in regulation 2(1)(a) refers to “biological diversity and its components”, rather than specifically to animals, plants or other living organisms. In this context, that means living organisms, as part of the environment and their relationship with the other elements of the environment. Examples include the protection of a badger sett or the location of a rare plant.
In this context, protection of the environment does not mean preventing cruelty to individual animals, unless there is an effect on biological diversity. For example, protecting the welfare of domestic pets is not protecting the environment because it does not affect biological diversity. However, a measure to control the trade in endangered species does relate to the protection of biological diversity.
The term “biological diversity” also includes genetically modified organisms.
The definition is not solely concerned with the natural environment. It includes the landscape as affected by human activity. Man-made structures such as archaeological sites and historic buildings could also fall within the definition, where they are part of the landscape. The system for listing buildings of architectural or historic importance is an example of the protection of the environment.
In decision notice FER0831226, the requestor sought information relating to archaeological works carried out at the former Reading Prison. The Commissioner accepted the Ministry of Justice’s argument that the information related to the preservation of a scheduled ancient monument and therefore related to the protection of the environment. As disclosure of specific archaeological finds would significantly increase the risk of individuals attempting to interfere with the site, the Commissioner agreed that there would be an adverse effect on the protection of the environment.
What does “protection of the environment” mean?
The exception is concerned with the “protection of the environment”, which means maintaining the quality of the environment. The information does not have to relate to a formal environmental protection scheme.
The adverse effect must also be on the protection of the environment “to which the information relates”. Therefore, the information you are withholding must relate to the element of the environment that you are trying to protect. It cannot simply be any information that would have some effect on environmental protection if you disclosed it. If, for example, you want to withhold information because disclosure would adversely affect the protection of the breeding site of a protected species, the information must relate to that breeding site.
In decision notice FER0788878, the requestor sought details of specific nesting sites of peregrine falcons. The Commissioner agreed with Natural Resources Wales that disclosing this information would assist egg collectors in locating nesting sites and so regulation 12(5)(g) was engaged.
We have produced general guidance that you should follow whenever you wish to use an “adverse effect” exemption. This section of guidance deals only with the factors specific to regulation 12(5)(g).
If you want to use this exception to withhold information, you should consider carefully how and to what extent disclosure would adversely affect the protection of the environment.
Regulation 12(5)(g) allows you to refuse to disclose information “to the extent that” its disclosure would adversely affect environmental protection. The phrase “to the extent that” means you should consider exactly what the adverse effect would be and how the protection of the environment would be affected by disclosure. A key question to ask is: would disclosing the information enable a person to do something that would harm the elements of the environment in question?
The system for designating Sites of Special Scientific Interest (SSSIs) helps to protect the environment, but maps showing the location of SSSIs are published on the National Biodiversity Network Gateway. Disclosing the location of these sites would not adversely affect the protection of the environment. Indeed, publicising this information is part of the process of protecting the environment. However, disclosing the location of a proposed site before the formal designation process begins could result in the site being damaged or interfered with before it receives legal protection. That would be an adverse effect on the protection of the environment.
For example, if a large number of people go to look at a sensitive site, that could cause damage to the site in question. Equally, an individual deliberately stealing or interfering with a protected species will cause harm.
Disclosing the exact location, with a full grid reference, of a rare plant may enable someone to steal or damage it. However, if the actual information you hold only reveals that the plant is situated within a relatively large area, it may be that disclosure would not adversely affect the protection of the plant.
The National Biodiversity Network’s guidance on sensitive environmental features is a good example of how to carry out this assessment. The exception doesn’t just apply to information on sensitive sites: it can also apply to other types of environmental information where disclosure would adversely affect the protection of the environment.
In decision notice IC-95788-T2N0, HS2 Ltd refused to disclose information showing where it had planted trees to mitigate the effects of HS2, as it stated that this would cause those sites to be targeted and damaged by anti-HS2 protestors. The Commissioner did not accept that HS2 Ltd had demonstrated that an adverse effect was more likely than not to occur, as it had failed to establish why the sites in question were likely to be targeted – even if their locations were known. Consequently the Commissioner determined that HS2 Ltd was not entitled to rely on the exception.
Even if you have decided that regulation 12(5)(g) is engaged, you still have to carry out the public interest test. You can only withhold the information if the public interest in maintaining the exception outweighs the public interest in disclosing the information.
Public interest in the exception
The EIR are intended to contribute to a better environment. If you have decided that disclosing a particular piece of information would adversely affect environmental protection, there is at least some public interest in preventing that adverse effect from occurring.
However, this does not mean that the public interest in maintaining this exception always outweighs that in favour of disclosure.
Firstly, regulation 12(2) says that “a public authority shall apply a presumption in favour of disclosure”. Therefore, if there is any doubt about the applicability of the exception (such as the public interest factors being evenly balanced), you must disclose the information.
Secondly, you should also consider how severe the adverse effect will be and how extensively and frequently it may occur. If there would be an adverse effect, but it would not be particularly severe or would have a limited extent, then the weight of the public interest in maintaining the exception is lower. If you can demonstrate that the adverse effect would be both severe and widespread, there is a very strong public interest in maintaining the exception.
Public interest in disclosure
There is always some public interest in disclosure to promote:
- transparency and accountability of public authorities;
- greater public awareness and understanding of environmental matters;
- a free exchange of views; and
- more effective public participation in environmental decision-making.
This is because all of these factors ultimately contribute to a better environment.
The weight of this interest varies from case to case. It will depend on the profile and importance of the issue. It also depends on the extent to which the content of the information informs public debate.
There may be other factors in favour of disclosure, depending on the particular circumstances of the case. For example:
- accountability for spending public money;
- the number of people affected by a proposal;
- any reasonable suspicion of wrongdoing; and
- the need to present a full picture to aid public understanding.
You should consider the relative weight of the public interest arguments both for maintaining the exception and for disclosure. You must also consider how those factors apply to all the circumstances of the case and the particular information you wish to withhold.
Our guidance on How exceptions and the public interest test work in the Environmental Information Regulations includes general advice on how to identify relevant public interest arguments and how to attach weight to those arguments.
In decision notice IC-91291-Q5M8, the complainant argued that there was a strong public interest in disclosure of a particular environmental study because it would show how HS2 Ltd identified, managed and mitigated risks to the natural environment.
Whilst recognising the public interest in disclosure, the Commissioner concluded that it was outweighed by the need to protect particular species from the harm that HS2 Ltd had demonstrated would occur.
Can we neither confirm nor deny holding information?
You cannot rely on regulation 12(5)(g) to neither confirm nor deny that you hold information. Under the EIR, you can only refuse to confirm or deny whether you hold information if confirming or denying would adversely affect the interests in regulation 12(5)(a) (international relations, defence, national security of public safety), or if it would unlawfully disclose the personal data of a third party.
What if the information relates to emissions?
Regulation 12(9) of the EIR forbids you from relying on regulation 12(5)(g) to withhold any information which relates to emissions. If you are not sure whether the information you wish to withhold relates to information on emissions, you may wish to consult our Information on emissions guidance.
13 December 2022 - We have updated the examples provided throughout the guidance.