The Environmental Information Regulations 2004

Made: 21st December 2004

Coming into force: 1st January 2005

Now, therefore, the Secretary of State, being a Minister designated[^f00002] for the purposes of section 2(2) of the European Communities Act 1972 in relation to freedom of access to, and dissemination of, information on the environment held by or for public authorities or other bodies, in exercise of the powers conferred on her by that section, makes the following Regulations:

PART 1 — Introductory

Citation and commencement

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These Regulations may be cited as the Environmental Information Regulations 2004 and shall come into force on 1st January 2005.

Interpretation

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• (1) In these Regulations—

• “the Act” means the Freedom of Information Act 2000[^f00003];

• “applicant”, in relation to a request for environmental information, means the person who made the request;

• “appropriate records authority”, in relation to a transferred public record, has the same meaning as in section 15(5) of the Act;

• “the Commissioner” means the Information Commissioner;

• “the data protection principles” means the principles set out in— Article 5(1) of the UK GDPR,section 34(1) of the Data Protection Act 2018, andsection 85(1) of that Act;

• “data subject” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);

• “the Directive” means Council Directive 2003/4/EC[^f00004] on public access to environmental information and repealing Council Directive 90/313/EEC;

• “environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on—the state of 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;factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;reports on the implementation of environmental legislation;cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); andthe state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);

• ...

• “historical record” has the same meaning as in section 62(1) of the Act;

• “personal data” has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(2) and (14) of that Act);

• “public authority” has the meaning given by paragraph (2);

• “public record” has the same meaning as in section 84 of the Act;

• “responsible authority”, in relation to a transferred public record, has the same meaning as in section 15(5) of the Act;

• “Scottish public authority” means—a body referred to in section 80(2) of the Act; andinsofar as not such a body, a Scottish public authority as defined in section 3 of the Freedom of Information (Scotland) Act 2002[^f00005];

• “transferred public record” has the same meaning as in section 15(4) of the Act; and

• “the UK GDPR” has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(10) and (14) of that Act);

• “working day” has the same meaning as in section 10(6) of the Act.

• (2) Subject to paragraph (3), “public authority” means—

• (a) government departments;

• (b) any other public authority as defined in section 3(1) of the Act, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding—

• (i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or

• (ii) any person designated by Order under section 5 of the Act;

• (c) any other body or other person, that carries out functions of public administration; or

• (d) 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.

• (3) Except as provided by regulation 12(10) a Scottish public authority is not a “public authority” for the purpose of these Regulations.

• (4A) In these Regulations, references to the UK GDPR and the Data Protection Act 2018 have effect as if in Article 2 of the UK GDPR and Chapter 3 of Part 2 of that Act (exemptions for manual unstructured processing and for national security and defence purposes)—

• (a) the references to an FOI public authority were references to a public authority as defined in these Regulations, and

• (b) the references to personal data held by such an authority were to be interpreted in accordance with regulation 3(2).

• (5) Except as provided by this regulation, expressions in these Regulations which appear in the Directive have the same meaning in these Regulations as they have in the Directive.

Application

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• (1) Subject to paragraphs (3) and (4), these Regulations apply to public authorities.

• (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.

• (3) These Regulations shall not apply to any public authority to the extent that it is acting in a judicial or legislative capacity.

• (4) These Regulations shall not apply to either House of Parliament to the extent required for the purpose of avoiding an infringement of the privileges of either House.

• (5) Each government department is to be treated as a person separate from any other government department for the purposes of Parts 2, 4 and 5 of these Regulations.

PART 2 — Access to environmental information held by public authorities

Dissemination of environmental information

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• (1) Subject to paragraph (3), a public authority shall in respect of environmental information that it holds—

• (a) progressively make the information available to the public by electronic means which are easily accessible; and

• (b) take reasonable steps to organize the information relevant to its functions with a view to the active and systematic dissemination to the public of the information.

• (2) For the purposes of paragraph (1) the use of electronic means to make information available or to organize information shall not be required in relation to information collected before 1st January 2005 in non-electronic form.

• (3) Paragraph (1) shall not extend to making available or disseminating information which a public authority would be entitled to refuse to disclose under regulation 12.

• (4) The information under paragraph (1) shall include at least—

• (a) the information referred to in Article 7(2) of the Directive; and

• (b) facts and analyses of facts which the public authority considers relevant and important in framing major environmental policy proposals.

Duty to make available environmental information on request

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• (1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request.

• (2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request.

• (3) To the extent that the information requested includes personal data of which the applicant is the data subject, paragraph (1) shall not apply to those personal data.

• (4) For the purposes of paragraph (1), where the information made available is compiled by or on behalf of the public authority it shall be up to date, accurate and comparable, so far as the public authority reasonably believes.

• (5) Where a public authority makes available information in paragraph (b) of the definition of environmental information, and the applicant so requests, the public authority shall, insofar as it is able to do so, either inform the applicant of the place where information, if available, can be found on the measurement procedures, including methods of analysis, sampling and pre-treatment of samples, used in compiling the information, or refer the applicant to a standardised procedure used.

• (6) Any enactment or rule of law that would prevent the disclosure of information in accordance with these Regulations shall not apply.

Form and format of information

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• (1) Where an applicant requests that the information be made available in a particular form or format, a public authority shall make it so available, unless—

• (a) it is reasonable for it to make the information available in another form or format; or

• (b) the information is already publicly available and easily accessible to the applicant in another form or format.

• (2) If the information is not made available in the form or format requested, the public authority shall—

• (a) explain the reason for its decision as soon as possible and no later than 20 working days after the date of receipt of the request for the information;

• (b) provide the explanation in writing if the applicant so requests; and

• (c) inform the applicant of the provisions of regulation 11 and of the enforcement and appeal provisions of the Act applied by regulation 18.

Extension of time

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• (1) Where a request is made under regulation 5, the public authority may extend the period of 20 working days referred to in the provisions in paragraph (2) to 40 working days if it reasonably believes that the complexity and volume of the information requested means that it is impracticable either to comply with the request within the earlier period or to make a decision to refuse to do so.

• (2) The provisions referred to in paragraph (1) are—

• (a) regulation 5(2);

• (b) regulation 6(2)(a); and

• (c) regulation 14(2).

• (3) Where paragraph (1) applies the public authority shall notify the applicant accordingly as soon as possible and no later than 20 working days after the date of receipt of the request.

Charging

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• (1) Subject to paragraphs (2) to (8), where a public authority makes environmental information available in accordance with regulation 5(1) the authority may charge the applicant for making the information available.

• (2) A public authority shall not make any charge for allowing an applicant—

• (a) to access any public registers or lists of environmental information held by the public authority; or

• (b) to examine the information requested at the place which the public authority makes available for that examination.

• (3) A charge under paragraph (1) shall not exceed an amount which the public authority is satisfied is a reasonable amount.

• (4) A public authority may require advance payment of a charge for making environmental information available and if it does it shall, no later than 20 working days after the date of receipt of the request for the information, notify the applicant of this requirement and of the amount of the advance payment.

• (5) Where a public authority has notified an applicant under paragraph (4) that advance payment is required, the public authority is not required—

• (a) to make available the information requested; or

• (b) to comply with regulations 6 or 14,

unless the charge is paid no later than 60 working days after the date on which it gave the notification.

• (6) The period beginning with the day on which the notification of a requirement for an advance payment is made and ending on the day on which that payment is received by the public authority is to be disregarded for the purposes of determining the period of 20 working days referred to in the provisions in paragraph (7), including any extension to those periods under regulation 7(1).

• (7) The provisions referred to in paragraph (6) are—

• (a) regulation 5(2);

• (b) regulation 6(2)(a); and

• (c) regulation 14(2).

• (8) A public authority shall publish and make available to applicants—

• (a) a schedule of its charges; and

• (b) information on the circumstances in which a charge may be made or waived.

Advice and assistance

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• (1) A public authority shall provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to applicants and prospective applicants.

• (2) Where a public authority decides that an applicant has formulated a request in too general a manner, it shall—

• (a) ask the applicant as soon as possible and in any event no later than 20 working days after the date of receipt of the request, to provide more particulars in relation to the request; and

• (b) assist the applicant in providing those particulars.

• (3) Where a code of practice has been made under regulation 16, and to the extent that a public authority conforms to that code in relation to the provision of advice and assistance in a particular case, it shall be taken to have complied with paragraph (1) in relation to that case.

• (4) Where paragraph (2) applies, in respect of the provisions in paragraph (5), the date on which the further particulars are received by the public authority shall be treated as the date after which the period of 20 working days referred to in those provisions shall be calculated.

• (5) The provisions referred to in paragraph (4) are—

• (a) regulation 5(2);

• (b) regulation 6(2)(a); and

• (c) regulation 14(2).

Transfer of a request

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• (1) Where a public authority that receives a request for environmental information does not hold the information requested but believes that another public authority or a Scottish public authority holds the information, the public authority shall either—

• (a) transfer the request to the other public authority or Scottish public authority; or

• (b) supply the applicant with the name and address of that authority,

and inform the applicant accordingly with the refusal sent under regulation 14(1).

• (2) Where a request is transferred to a public authority, for the purposes of the provisions referred to in paragraph (3) the request is received by that public authority on the date on which it receives the transferred request.

• (3) The provisions referred to in paragraph (2) are—

• (a) regulation 5(2);

• (b) regulation 6(2)(a); and

• (c) regulation 14(2).

Representations and reconsideration

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• (1) Subject to paragraph (2), an applicant may make representations to a public authority in relation to the applicant’s request for environmental information if it appears to the applicant that the authority has failed to comply with a requirement of these Regulations in relation to the request.

• (2) Representations under paragraph (1) shall be made in writing to the public authority no later than 40 working days after the date on which the applicant believes that the public authority has failed to comply with the requirement.

• (3) The public authority shall on receipt of the representations and free of charge—

• (a) consider them and any supporting evidence produced by the applicant; and

• (b) decide if it has complied with the requirement.

• (4) A public authority shall notify the applicant of its decision under paragraph (3) as soon as possible and no later than 40 working days after the date of receipt of the representations.

• (5) Where the public authority decides that it has failed to comply with these Regulations in relation to the request, the notification under paragraph (4) shall include a statement of—

• (a) the failure to comply;

• (b) the action the authority has decided to take to comply with the requirement; and

• (c) the period within which that action is to be taken.

PART 3 — Exceptions to the duty to disclose environmental information

Exceptions to the duty to disclose environmental information

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• (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

• (a) an exception to disclosure applies under paragraphs (4) or (5); and

• (b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

• (2) A public authority shall apply a presumption in favour of disclosure.

• (3) To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13.

• (4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—

• (a) it does not hold that information when an applicant’s request is received;

• (b) the request for information is manifestly unreasonable;