FOI and EIR – Rights to information

1. FOI and EIR – Rights to information Damien Welfare 2-3 Gray’s Inn Square

2. FOI Act 2000 • The Right to Know (a) to be informed in writing whether the authority holds information of the description specified (“confirm/deny”); (b) if so, to have that information communicated to the applicant

3. Process – format • Request in writing, name and address, description of information sought • No need to refer to FOI Act • Staff have duty to advise and assist those making requests

4. Time limits • Time limit –“promptly” or 20 working days • For schools: 20 school days/60 working days, whichever sooner • Where qualified exemption, such time as is reasonable • Refusal (or estimate where qualified exemption) - within 20 working days

5. Format of response Applicant may choose: - permanent form - inspection - summary - other form Authority must comply so far as reasonably practicable

6. Cost limit • Refusal where cost would exceed “appropriate limit” (£450 for LA). • Calculated (at £25 ph) as to: • (i) Determining whether holds information • (ii) Locating the information or documents • (iii) Retrieving the information or documents • (iv) Extracting the information (inc editing and redaction) [Reg 4(3)] • LB Camden (16 Dec 05): new software; 28 hrs

7. Charges • Below the appropriate limit, may charge only what it reasonably expects to incur in: (a) informing applicant whether it holds the info; (b) communicating (eg reproducing, postage) • Above the limit: discretionary whether to reply. May charge costs above, plus Reg 4 costs • Charges in Publication Schemes fall outside limits • Govt has consulted on revised cost/charges Regs.

8. Refusals • May refuse if: • cannot understand, after seeking to clarify • Vexatious (below) • Repeated (if no reasonable interval since reply to previous same/substantially similar request) • Refusals require: reasons; advice on requesting review; explanation of right to appeal to Information Commissioner

9. Vexatious requests • Designed to subject to inconvenience, harassment or expense • Manifestly unreasonable; designed to cause disruption or annoyance; no serious purpose • Awareness Guidance 22 (Jan 06) • Birmingham case (8 Mar 06): refusal if: (a) can demonstrate diversion of substantial resources; (b) cumulative effect of harassment; (c) “obsessive thematic requests”

10. Enforcement • Enforcement by IC (Information Commissioner) = Information, Enforcement and Decision notices • Offence: altering, destroying etc an FOI request • Appeal from IC to Information Tribunal and then High Court

11. Exemptions – absolute and qualified • Absolute: (i) accessible by other means – s21 • [most] personal data of third parties – s 40 (NB. senior staff: Corby case v Calderdale and City of York decisions, 16 and 15 May 2007) (iii) information provided in confidence – s 41 (NB. Derry City Council, 11 Dec 06, (IT) (iv) disclosure prohibited eg by statute – s44 (v) Others (eg court records, s32; information from security bodies, s23)

12. Qualified exemptions and PIT • Application of a qualified exemptions is subject to Public Interest Test: = duty to disclose/confirm or deny does not apply where the public interest in applying the exemption outweighs the public interest in disclosure

13. Qualified exemptions • (i) Intended for future publication – s22 • (ii) local economy – s 29 (Derry case) • (ii) investigations/proceedings –s30 • (iii) law enforcement – s31 (Bridgend, 9 Dec 05) • (iv) health and safety – s38 • (v) legal professional privilege – s42 (eg Bellamy case, 4 Apr 05, (IT)

14. Qualified exemptions (cont) • (vi) trade secret; prejudice to commercial interests – s43 (Derry case) • (vii) Environmental info - s39 (below) • (viii) disclosure would inhibit free & frank provision of advice/exchange of views; or otherwise prejudice effective conduct of public affairs – s36, (Guardian and Brooke, 8 Jan 07, (IT) BBC Hutton case) • (ix) formulation of Govt policy – s 35 (DFES, 19 Feb 07 (IT)

15. EIR - overview • EIR 2004 (Directive 2003/4/EC) • Replaced EIR 1992 • All requests are FOI, EIR or DP • Where the EIR apply, the FOI Act does not (FOI exemption, s39) • So need to define EIR before can apply FOI • Authority applies appropriate regime(s) • Many requests will be mixed

16. Guidance • EIR Code of Practice • EIR Guidance (DEFRA) • DEFRA: The Boundaries between EIR and FOI (July 2006) • useful case examples • Limitation on scope: EC direct effect test

17. Definition of environmental information • Information in any form “on”: • (a) state of the elements (eg air, land, biological diversity) and their interaction • (b) factors (eg noise, waste) affecting/likely to affect, elements • (c) measures (eg policies, programmes) affecting/likely to affect (or designed to protect) elements and factors

18. Definition (cont) • (d) reports on implementation of environmental legislation • (e) cost/benefit or other economic analyses used in measures • (f) state of human health & safety (inc. food contamination), conditions of human life, cultural sites, and built structures inasmuch as affected by elements, factors or measures

19. Areas covered • Planning/development control • Transport and roads • Regeneration, building control • Waste, pollution • Noise • Countryside and conservation • Flood protection • Energy • Public Health, h&s (in part), Food Safety

20. Cases: EIR and planning • Bridgnorth (2 July 05): planning enforcement • Markinson (28 Mar 06) (IT): file on planning applications • Mid Suffolk (2 June 2006): planning applications • Kirkcaldie (Thanet District Council) (IT) (4 July 2006) – section 106 agreement • DCLG (27 July 2006) – report of planning inspector • Lord Baker v IC and DCLG (1 June 2007) (IT), “Vauxhall Tower” case

21. Other cases on scope • Ibstock (1995) – identity of source of information (under EIR 1992) • B’ham Nthrn Relief Road (1998) – road concession agreement • City of Plymouth (2 March 2006): pedestrian crossing • Wolverhampton (2 June 2006) – criteria for boundaries

22. Who and what is subject to EIR • a) FOI public authority (minor differences) • b) Person carrying out public functions • c) Contractor providing public services relating to environment (ERM, 7 June 06) • Information is “held” if – • produced or received by the authority • held by another person on behalf of the authority

23. Timetable • Replies as soon as possible • Within 20 working days • May extend to 40 wd where complexity and volume make 20 wd impracticable • If extend, tell applicant within 20 w.d

24. Differences between EIR & FOI • Wider range of bodies covered by EIR • Less flexible extension of time • Oral requests valid (cf s10, FOIA) • No cost limit (unlike s12, FOIA) • Presumption in favour of disclosure is express • Fewer “exceptions” than FOI; mostly narrower • Public interest test for all (Reg 12) exceptions • EIR override other enactments (unlike s44, FOIA) • Pro-active duty to disseminate (Reg 4)

25. Exceptions – Reg 12(4) • (a) Information is not held when requested • (b) Request manifestly unreasonable • (c) request too general • (d) in course of completion • (e) internal communications (Lord Bakerv IC/Vauxhall Tower case, 1 June 2007)

26. Exceptions – Reg 12(5) • Disclosure would adversely affect: • international relations, national security • course of justice • intellectual property rights (d) confidentiality of proceedings (e) commercial or industrial confidentiality (f) Interests of voluntary provider of info (g) Protection of environment to which info relates

27. Confidentiality - Reg 12(5)(d) • Confidentiality of proceedings of that or another authority where provided by law • Within common law duty of confidence • May not cover confidentiality in contract • Overrides Pt VII, LGA 1972 if conflict • Info concerning emissions excluded

28. Commercial or industrial information – Reg 12(5)(e) • Confidentiality where provided by law to protect a legitimate economic interest. • No exception for prejudice to interests (unlike FOI) • Cannot contract out of EIR obligations • Does not apply to emissions info

29. Personal data – Reg 13 • Exception for PD of third party if – • disclosure would breach DP principles • subject has exercised rt to prevent processing (s10, DPA) • info exempt from access by data subject (s7, DPA) and public interest favours non-disclosure

30. Charges – Reg 8 • Charge not to exceed what authority is satisfied is a reasonable amount • Publish schedule of charges • Markinson case • guidance on charging • Copies at 10p per sheet unless “good reason”

31. Advice & assistance – Reg 9 • Duty to assist applicants and prospective applicants (so far as reasonable to expect) • If request too general, duty to ask for more particulars within 20 w.d. • Conformity to EIR Code is compliance

32. Duty to disseminate – Reg 4 • Duty progressively to make information held available on authority’s website • policies, programmes etc (Art 7.2) • facts/analyses relevant to major environmental policy proposals

33. Enforcement, appeals • Representations to authority within 40 wd • Response within further 40 w.d. • Application to Commissioner • Information/decision/enforcement notice • Appeal to Information Tribunal • Final appeal to High Court (pt of law), ECJ

34. Conclusions • Important to identify correct regime • Mixed requests likely, esp in unitary LAs • EIR cover much local government activity • Several exemptions (eg ss 35, 36, 41, 43) and Reg 12(4)(e) proving to be weaker shields for public authorities (esp central govt) than many expected