Latest updates - last updated 9 January 2023
09 January 2023 - We have provided more detailed guidance about when information is considered to be ‘held’ for the purposes of the EIR, including information held on non-corporate channels of communications. Ie we have clarified a) when information is considered to be ‘in possession’ of the public authority and produced and received by it b) when information is considered to be held by a third party on behalf of the public authority. We have added new examples from Tribunal’s decisions.
You can find these changes in the section “Who holds the information?”.
We have added a new section to clarify the meaning of ‘holding’ in the context of the EIR by referencing relevant case law. You can find this change in the section “What does ‘holding’ information to any extent for your purposes mean?”.
We have added a new section to provide more detailed advice about the practical considerations you should be mindful of when considering if you hold information for the purposes of the EIR, including in relation to good information management practice. You can find this change in the section “What else should we be mindful of when applying reg 3(2)?.
About this detailed guidance
This guidance is written for the use by public authorities. It will help you better understand in which circumstances you hold information for the purposes of the Environmental Information Regulations 2004 (EIR). Read it if you have questions not answered in the Guide or if you need a deeper understanding to help you apply regulation 3(2) in practice.
This guidance is relevant only in relation to requests for environmental information. If the information is not environmental, you should read the guidance on information held for the purposes of the Freedom of Information Act 2000 (FOIA) instead.
- What do the EIR say?
- Who holds the information?
- What does ‘holding’ the information to any extent for your own purposes mean?
- What else should we be mindful of when applying reg. 3(2)?
The EIR give right of public access to environmental information held by public authorities.
Parliament introduced the Regulations to implement the European Council Directive 2003/4/EC in the UK. As a piece of EU-derived domestic legislation, the EIR is part of the body of retained EU law by virtue of section 2 of the European Union (Withdrawal) Act 2018.
Regulation 3(2) states:
3. — (2) For the purposes of these Regulations, environmental 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
(b) is held by another person on behalf of the authority.
Regulation 3(2) sets out two scenarios in which the information is considered to be ‘held’ for the purposes of the EIR.
The first scenario is when you are ‘in possession’ of the information and you produced or received it.
The second scenario is when a third party holds the information on your behalf.
Unlike the Freedom of Information Act (FOIA), the definition of information held for the purposes of the EIR does not explicitly exclude information you hold solely on behalf of another body or person. However, this does not mean that this type of information falls within the scope of the EIR, unless you are holding it to any extent for your own purposes.
Under regulation 3(2)(a), there are two cumulative requirements to be met for information to be considered ‘held’ for the purposes of the EIR.
The first requirement is that the information must be in your ‘possession’.
This is not a purely physical concept. It covers circumstances in which:
- you physically hold the information, eg in a storage facility on your premises or offsite, and
- you hold the information digitally, eg on your local IT Network, in a cloud storage or a hardware storage device (for example, a USB stick or an external hard drive). This includes personal devices used by your staff for work purposes.
The second requirement arising from regulation 3(2)(a) is that you have produced or received the information. For this requirement to be triggered, there must be a connection between the information and the functions and work you do as a public authority.
The leading authority on the interpretation of regulation 3(2)(a) is the Upper Tribunal’s decision in Holland vs Information Commissioner and University of Cambridge (‘the University’)  UKUT 260 (AAC) (1 June 2016). The Upper Tribunal (UT) dismissed the appeal because it found the authority did not hold the information for the purposes of the EIR.
The applicant had requested from the University information about the reports of a working group of the Intergovernmental Panel on Climate Change (IPCC), produced by the review editor. The review editor was also a professor at the University. However, he was fulfilling the role in the IPCC in an unpaid and honorary capacity. The role was also not connected to his professorship at the University.
The University refused the request on the basis that it did not hold the information for EIR purposes because the professor’s role “was not connected to his contractual employment by or professional role within the University.” [para 5]
The applicant challenged this decision. On appeal, they argued that information is held if it is in the ‘physical’ possession of the authority or ‘in their control’. They pointed out that the information had been sent to the review editor at his university’s email address which operated through the University’s server. Therefore, the applicant argued that the information was ‘in possession’ of the University as it was held on a computer owned by the University.
The UT rejected this interpretation. It found that regulation 3(2)(a) requires that “the information is in the authority’s possession and produced or received by it.” [para. 45]
The Tribunal agreed with the Commissioner that the phrase ‘produced and received by the authority’ in reg 3(2)(a) added something to the fact of possession, and that the word ‘by’ was meant to show “that the authority must itself be the producer or recipient of the information.” [para. 46]
The UT concluded that – to establish whether information is held for EIR purposes – a “factual determination is required as to how the information has come to be in the possession of the authority. The question is whether the information was produced or received by means which were unconnected with the authority, for example by an individual in their personal or other independent capacity; or whether it was produced or received by means which related to the authority, for example by someone acting in their professional capacity in relation to the authority (such as an employee of the authority). The connection must be such that it can be said that the production or receipt of the information is attributable to (“by”) the authority.” [para 48]
Information produced or received by a member of your staff in their private capacity on your systems does not fall within the scope of regulation 3(2)(a). This is because the information was not produced for purposes connected to your work as a public authority, even though it is held on your premises or computer systems.
Similarly, communications made by using your corporate channels between trade unions and their members are not held for the purposes of the EIR. However, communications between trade union officials and representatives of the management side in the course of negotiations and consultations could fall within the scope of the EIR. For example, you could hold for your own purposes trade unions’ official responses to a health and safety risk assessment you conducted in the workplace.
By contrast, official information held by members of your staff on non-corporate communication channels or storage – including personal cloud storage – is held for the purposes of the EIR if it meets the above criteria.
Regulation 3(2)(a) is likely to be relevant in circumstances such as the following:
- You are acting as a sole trustee in a charitable trust. This is likely to apply if you are a local authority because local authorities can act as trustees of public facilities such as playing fields and leisure centres, or as trustees of funds. A charitable trust is a type of incorporated charity which has no separate legal personality. When acting as a sole trustee in a charitable trust, you could be holding information for the purposes of the EIR on the basis that the information is held for your own purposes. This is because the Local Government Act 1972 draws no distinction between the functions of a local authority when they act in this capacity and their functions when they act as trustees of a charitable trust.
In Ian Hutchinson v Information Commissioner and Kirklees Metropolitan Council EA/2017/0194 (23 January 2018), the First-tier Tribunal decided that the information the authority was holding in their capacity as a trustee in a charitable trust was held for the purposes of the EIR within the meaning of reg. 3(2)(a).
The applicant had requested information about Clayton Baths, a facility owned by a charitable trust. Kirklees Metropolitan Council acted as the sole trustee.
The council’s position was that they held the requested information in their capacity as a trustee, rather than in their capacity as a local authority.
The First-tier Tribunal rejected this argument. It noted that a charitable trust is not a legal entity in its own right and found that:
“[S]ection 139 [of the Local Government Act 1972] expressly confirms the power of a local authority to receive assets and act as a charitable charity (…) s.139 indicates that there is no clear division between Kirklees’ functions as trustee and its other functions. If a local authority chooses to act as trustee of a charitable trust, the performance of its duties as trustee is one of its functions as a local authority.” [para. 27–28]
As a result, the First-tier Tribunal concluded that Kirklees Metropolitan Council was holding the information for the purposes of the EIR and dismissed the appeal.
- Information held by local councillors when carrying out functions of a local authority. This includes circumstances in which councillors:
- hold information in their role as cabinet members,
- have executive responsibility for a service area,
- represent the local authority in relevant forums, eg a regional forum, and
- carry out relevant administrative public functions.
It does not include circumstances in which local councillors hold information when performing their function as elected members. That is, when corresponding with residents of their ward, when discussing council business with fellow councillors in the context of a voting strategy or when campaigning on behalf of their political party.
In summary, when seeking to establish if you hold environmental information under regulation 3(2)(a), you need to consider whether you hold it – either physically or digitally – and the extent to which you hold it for your own purposes.
These two cumulative requirements also have the effect of excluding from the scope of the EIR information you are holding exclusively on behalf of someone else. This is because what matters is whether you are holding the information to any extent for your own purposes. That is, whether the information relates to your work and functions as a public authority.
Regulation 3(2)(b) covers circumstances in which the information is held on your behalf by another person. When you receive a request for environmental information, it is important that you consider if any information relevant to the request is held by an external third party you have dealings with. The distinction will not always be clear cut. To help you establish this, think about the full context of the request and the degree of connection between the information held by a third party and your functions as a public authority.
Regulation 3(2)(b) is likely to be relevant in circumstances such as the following:
- You have arrangements in place for documents or archive storage. This includes situations where you use document management services, eg you have leased offsite storage facilities to keep your physical records and documents. It also includes arrangements for the keeping of your legal documents by a firm of solicitors. Similarly, if you have placed records for safekeeping with a local archive or county record office, it is likely that they will be holding the information on your behalf. This will be the case if the archive or record office are separate bodies and if you have not relinquished the ownership of the archive to them.
- You have outsourced some of your services to a private contractor or have other contractual arrangements in place with a third party. In these circumstances, the contract terms can help you establish whether the third party is holding information on your behalf. This is the case also if you do not have routine access to the information generated by the contractor.
In King v Information Commissioner and Ceredigion County Council, EA/2012/0202 (29 April 2013), the First-tier Tribunal decided that the information held by a contractor was being held on behalf of the public authority. This meant that information was within scope of the EIR by virtue of reg. 3(2)(b).
The applicant had requested the primary data used to inform the environment statement supporting a planning application.
During the appeal, the authority – Ceredigion County Council (CCC) – argued that the requested information was held by a contractor for its own purposes. This was based on the contract terms, according to which CCC had access only to the final reports produced by the contractor and not to the primary data used to produce them.
The Tribunal noted that the contract clauses provided “a right of access for the Council not just for the deliverables/output reports, but also the raw or primary data created for the purpose of the contract”. In the Tribunal’s reading of the contract, the information included the “data commissioned from sub-contractors for the purposes of the contract.” [para. 15]
As a result, the First-tier Tribunal found that some of the requested information was held by the contractor on behalf of the authority. [para. 30]
Although a helpful tool, the contract will not always give you a definite answer as to whether a third party holds information on your behalf. You always need to consider all the facts relevant to the request and establish the degree of connection between the information and your functions as a public authority.
In Dunne v Information Commissioner and The Foreign and Commonwealth Office (FCO), EA/2012/0257 (26 September 2013), the First-tier Tribunal decided that the private contractor did not hold the information on behalf of the authority. It reached this conclusion despite a clause in the contract which required the contractor to assist with compliance with access to information legislation.
The applicant had requested environmental information about the British Indian Ocean Territory (BIOT). The BIOT Government is constitutionally distinct from the UK Government. However, some UK members of staff held dual roles as both BIOT and FCO officials. This meant they might be holding information on behalf of both governments.
The private contractor – Marine Resources Assessment Group Ltd (MRAG) – had a contractual relationship with the BIOT Administration.
The Tribunal sought to establish if MRAG held information also on behalf of the FCO based on the fact that some FCO officials also held roles as BIOT officials.
Despite some contractual provisions that seemed to suggest otherwise, the Tribunal noted: “[S]ince MRAG’s only relevant contractual relationship is with the BIOT Administration, and not with the FCO, there would need to be some other positive evidence to demonstrate that in fact, notwithstanding the contract, MRAG holds information also on behalf of the FCO.” [para. 21]
The Tribunal found no evidence to support the conclusion that the contractor was holding the requested information on behalf of the FCO and therefore dismissed the appeal.
- Information you shared and instructions you gave, as a client, to solicitors. In this scenario, the solicitors could be holding information on your behalf to the extent they are not holding the information for their own purposes (eg to defend themselves in negligence claims).
In Clyne v Information Commissioner and London Borough of Lambeth, EA/2011/0190 (10 May 2012), the First-tier Tribunal found there was no evidence to suggest that external solicitors used by the authority were holding information on its behalf within the meaning of reg. 3(2)(b) [para. 45].
The applicant had requested a copy of the earlier drafts of a report created by an external legal consultancy on a railway depot. As the authority had failed to locate the requested information on its systems, the applicant argued the solicitors at the consultancy would have a copy of the drafts and would be holding it on the authority’s behalf.
The Tribunal noted that:
“as a matter of general practice the Solicitors would send a copy of any relevant correspondence to the Council for their records, any copy they kept would be for the firm’s own records (to protect against a negligence claim, to assist in audit and billing).” [para. 45]
As a result, the Tribunal decided that any information held by the solicitors was not held for the purposes of the EIR on behalf of the authority.
Agency agreements with other bodies have similar implications. Agency is a relationship between two parties where one party (the ‘principal’) delegates powers or functions to another party (the ‘agent’) to act on their behalf. If you have an agency agreement in place, information relevant to a request might be held by your agent
- You are delivering services or some of your objectives as a public authority through joint working, partnerships or consortia arrangements. This covers circumstances in which you have agreements in place with other organisations – which could be private bodies or other public authorities – aimed at achieving a shared goal through a specific organisational set-up and agreed programme. The agreement’s terms can help you establish what relevant information you hold and what information might be held by one of the other partners on your behalf.
- Information created by voluntary steering or working groups as part of your community or public engagement activities. In the context of recent developments towards devolving more powers to local government, this is likely to be relevant if you are a local authority. These developments have led local authorities to put in place processes for involving citizens in some aspects of local planning and decision-making. Examples of this include involving voluntary community groups on issues such as neighbourhood planning. In such a scenario, information produced as part of these activities is held for the purposes of the EIR to the extent it relates to your functions as a public authority.
In Decision Notice FS50904425, the Information Commissioner decided that the information on the work carried out by a voluntary Steering Group on the creation of a local Neighbourhood Plan was held on behalf of the public authority within the meaning of reg. 3(2)(b).
The applicant had submitted a request for information to South Leverton Parish Council (SLPC), asking for a copy of the consultation responses on suitable sites for development. The consultation responses had been collated by a Steering Group comprising local residents acting in a volunteer capacity.
SLPC refused to respond to the request on the basis that it did not hold the information.
During the investigation, the Commissioner found that SLPC had:
- Set up the voluntary Steering Group to involve the local community in the development of a neighbourhood plan.
- Approved the Terms of Reference of the Steering Group.
- Retained the responsibility for the implementation of the plan by following it through with the Local Planning Authority.
At para. 29, the Commissioner concluded:
“SLPC has in effect delegated to a community group, [sic] work that it might normally be expected to carry out for the public. It is SLPC that ultimately carries legal responsibility for the Neighbourhood Plan, even where it has appointed a community group to work on it.”
As a result of these findings, the Commissioner decided that the Steering Group held the information on behalf of the authority within the meaning of reg. 3(2)(b).
The meaning of ‘held’ in the context of information access rights was clarified through case law. The leading authority is the Upper Tribunal decision in University of Newcastle upon Tyne v Information Commissioner and BUAV  UKUT 185 (AAC). This decision was made in the context of FOIA. However, the same principles apply with the EIR.
That is, establishing if you hold the information to any extent for your own purposes means establishing if there is an ‘appropriate connection’ between the information and your functions as a public authority.
You need to assess this on a case-by-case basis by considering the context and circumstances of each individual request.
Several factors can help you decide the extent to which you hold information for your own purposes. These factors include:
- the extent to which you have access to the information,
- the degree of control you have over the information, including controlling who has access to it and how it is used,
- the extent to which you use it for your own purposes, regardless of whether it was created by a third party,
- the extent to which you had an input in its creation or alteration,
- the extent to which you retain ultimate responsibility over the management of the information, including its retention and deletion,
- whether you are merely providing storage, either on your physical premises or on your electronic and cloud systems.
This is not an exhaustive list and the weight attached to each factor varies depending on the circumstances of each case.
In the BUAV case mentioned above, the First-tier Tribunal noted that, depending on the particular facts of the case, factors such as those outlined above “may be useful matters to consider when looking at whether the public authority holds the information, but they should not be read as if they had been intended as definitive tests of whether information is ‘held’.” [para. 49]
On appeal, the Upper Tribunal validated this approach as correct.
What else should we be mindful of when applying reg. 3(2)?
Having a good information management framework in place can help you establish what information you hold for the purposes of the EIR.
To meet the requirements of reg. 3(2), you need to know what information you are holding for your purposes, what information you hold solely on behalf of another person and what information a third party is holding on your behalf.
Effective information and records management practices facilitate this.
When you work with third parties, you retain the legal responsibility for dealing with requests for information they hold on your behalf. In this context, you should ensure you have information-sharing agreements in place. These agreements should include information rights obligations to enable you to easily have access and retrieve information relevant to the requests you receive.
The Secretary of State for Digital, Culture, Media and Sport issued a revised Code of Practice on the Management of Records in July 2021. The Code provides guidance to public authorities on good practice about the keeping, management and destruction of records. You should familiarise yourself with this document if you are unsure about how to best manage the information you are responsible for.
When seeking to establish if you hold the requested information, ensure you are thorough so as to identify and locate all the information within scope of a request. You must include in your searches any information relevant to the request that a third party holds on your behalf. In the event of a complaint to the ICO, you can be asked about the quality and rigour of your searches to determine whether you hold the information on the balance of probabilities.
Information held does not equal disclosure. However, before moving on to consider whether you can disclose or not, you must first ensure you have identified all relevant information within scope of a request.
Applicants are not necessarily familiar with the relevant legislation nor on how to best frame a request.
If an applicant has not sufficiently described the information or the request is unclear or too broad, regulation 9 requires you to provide advice and assistance to help them reframe the request more effectively.
If the applicant has requested information you hold solely on behalf of another person, explain this to the applicant rather than ignoring their request.
If you are aware that the information is held by another authority – including a Scottish authority – regulation 10 requires you to transfer the request to the relevant authority.
Alternatively, you can advise the applicant where they should redirect the request.
The Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004 (SI 2004 No. 3391) gives further guidance on how you can provide advice and assistance to applicants.
Assisting applicants at an early stage can help you manage their expectations and is a good way to iron out any issues before they escalate into a complaint.
- Information held by a public authority for the purposes of the Freedom of Information Act
- Regulation 9 – Advice and Assistance
- Outsourcing – FOIA and EIR obligations
- Official information held in non-corporate communications channels
In addition to our guidance, we also recommend you take into account the following: