Enhancing Understanding of Environmental Information Regimes

1. Aarhus Convention Task Force on Access to Information Item 2(a) Scope of Environmental InformationPresentation by UK Palais des Nations, 3-5 December 2014

2. Agenda • Policy issues • Using and understanding two regimes • New Boundaries Guidance to help public authorities • Legal developments • Challenges • Differences in interpretation • Classification of non-environmental information and lack of case-law on interpretation • Lessons learned

3. Policy Issues • UK has two information regimes: • Environmental Information Regulations 2004 (EIRs) implement EU Directive 2003/4/EC and the Aarhus Convention, and • Freedom of Information Act 2000 (FOIA) is purely domestic legislation covering all other information • Why two? Because of subtle but significant differences in approach, including the scope and nature of the exceptions • Which regime to employ? Public authorities need to assess whether the information being requested falls within the definition of environmental information

4. Policy Issues – Need for Guidance • Proper classification of information as non-environmental (subject to the FOIA) or environmental (subject to the EIRs) is a matter of law • Requests should be handled under the EIRs only where the information clearly falls within the definition of environmental information • Information has to • be directly on an element of the environment, or • affect or be likely to affect an element of the environment in order to fall within the definition

5. Policy Issues – Guidance Produced! • Defra has developed guidance to help those handling requests for information to distinguish between environmental and non-environmental information • Our guidance: • Introduces the EIRs and the concept of “environmental information” as defined in the Aarhus Convention • Helps users apply the definition of environmental information • Gives examples of actual cases examining the definition • Includes a flowchart to help test information against the definition • Helps users achieve a consistent approach to using EIRs or FOIA

6. Policy Issues – Guidance Flowchart

7. Legal developments • There is limited domestic case-law to help public authorities understand how to interpret the definition and decide where information merely has an environmental context • First-tier Tribunal decision in the Uttlesford case (planning applications) clarified where information was “a step further away from the primary focus” • Judge Hughes stated that handling non-environmental information under the EIRs “[flies] in [the] face of the principle of legal certainty by extending the meaning of words beyond their normal meanings."

8. Challenges • The main difficulties derive from the interpretation of “information … on” in Article 2(3) of the Aarhus Convention • A broad interpretation by the UK regulator has led to information that arguably has nothing to say about the primary focus of the Aarhus Convention, i.e. the state of the elements of the natural environment, being handled under the EIRs • There can be differences of opinion between public authorities, the UK regulator and the appeal tribunals and courts on the interpretation of the definition

9. Lessons Learned • Need a forum to share information and key messages with the aim of promoting best practice • Task Force can be invaluable in this role • UK would welcome the establishment of a network of contacts to share information and best practice • to improve our collective knowledge, and • learn from other’s experience in applying and interpreting the Aarhus Convention • UK is willing to share its court judgments/decisions and other information with other Parties to the Convention

10. Thank You! Please contact us • UK Delegates promoting access to environmental information: • Department for Environment, Food & Rural Affairs • Mike Kaye mike.kaye@defra.gsi.gov.uk • Valerie Hope valerie.hope@defra.gsi.gov.uk