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1 ico lo What is environmental information? (regulation 2(1)). Environmental Information Regulations Contents Introduction .. 2. Overview .. 2. Why it is important to identify environmental information .. 3. What the EIR say .. 3. Background to the EIR .. 5. Information in any material form .. 5. Any information on .. 5. The definitions in regulations 2(1)(a)-(f) .. 7. Regulation 2(1)(b): factors .. 10. Regulation 5(5) requirements in relation to information falling under regulation 2(1)(b) .. 11. Regulation 2(1)(c): measures and 12. Regulation 2(1)(d): reports on environmental 15. Regulation 2(1)(e): cost-benefit and economic analyses .. 16. Regulation 2(1)(f): human health and safety, conditions of human life, cultural sites and built structure .. 16. Common issues .. 19 Planning decisions .. 19 Listed buildings .. 20 Internal alterations in buildings .. 20 Agreements under section 106 of the Town and Country Planning Act 1990 .. 21 Property searches .. 22 Other considerations.

2 24 More information .. 24 What is environmental information? (regulation 2(1) EIR). Version: 20161107. Introduction 1. The Freedom of Information Act (FOIA) and the Environmental Information Regulations 2004 (EIR) give rights of public access to information held by public authorities. 2. An overview of the main provisions of FOIA can be found in The Guide to freedom of information. 3. An overview of the main provisions of the EIR can be found in The Guide to the Environmental Information Regulations. 4. This is part of a series of guidance, which goes into more detail than the guides, to help public authorities fully understand their obligations and promote good practice. 5. This guidance explains to public authorities how to identify environmental information for the purposes of the EIR. Overview Public authorities that are subject to the EIR must consider disclosure of environmental information under the EIR, rather than under FOIA. Environmental information is any information on: o the state of the elements of the environment and the interaction among these elements.

3 O factors affecting or likely to affect those elements;. o measures or activities affecting or likely to affect those factors or elements, or designed to protect those elements;. o reports on the implementation of environmental legislation;. o cost benefit and other economic analyses and assumptions used within the framework of those measures and activities; and o the state of human health and safety, conditions of human life, cultural sites and built structures in as 2. What is environmental information? (regulation 2(1) EIR). Version: 20161107. much as they are or may be affected by those elements. Public authorities should interpret the phrase any information on' broadly. Why it is important to identify environmental information 6. Any public authority that is subject to the EIR must consider carefully the content of requested information in order to ensure that it handles a request under the correct regime: the EIR or FOIA. 7. This is particularly important when refusing to provide information, as the reasons why information can be withheld under FOIA (the exemptions) are different from the reasons why information can be withheld under the EIR (the exceptions).

4 8. There are also other differences. For example, under the EIR, information requests may be made verbally (unlike under FOIA), and there are differences in the time limits for compliance. 9. Public authorities should review the requested information before deciding whether it is environmental information or not. They should only make a decision about which legislation to apply based upon the wording of the request where this is unavoidable, eg where the information is not held. 10. If some of the information held is environmental information and some is not, then the public authority will have to apply the EIR to the environmental information and FOIA to the non- environmental information. Please see paragraphs 63 to 65. below. Separate guidance on how this works when the public authority thinks the request may be costly, vexatious or manifestly unreasonable can be found in our guidance: Calculating costs where a request spans different access regimes and Manifestly unreasonable requests.

5 What the EIR say 11. Regulation 2(1) states: 3. What is environmental information? (regulation 2(1) EIR). Version: 20161107. 2. (1) In these Regulations .. 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 . (a) 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;. (b) 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);. (c) 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.

6 (d) reports on the implementation of environmental legislation;. (e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and (f) the 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);. 4. What is environmental information? (regulation 2(1) EIR). Version: 20161107. Background to the EIR. 12. The EIR derive from European law: an EU Directive and, originally, the Aarhus Convention. 13. The Aarhus Convention Implementation Guide1, published by the United National Economic Commission for Europe, explains the intentions behind the definition of environmental information in the Convention: the clear intention of the drafters, however, was to craft a definition that would be as broad in scope as possible, a fact that should be taken into account in its interpretation.

7 Information in any material form 14. The definition of environmental information encompasses recorded information in any material form. Therefore it includes emails, drawings, sound recordings and CCTV. recordings as well as hard copies of letters and other documents. As with FOIA, there is no requirement for public authorities to create information, but they are expected to extract existing information, for example from a database. For more details, please see our guidance: Information held by a public authority for the purposes of the EIR. Any information on 15. Any information' means environmental information covers any information about, concerning or relating to the various factors, elements and other items stated. 16. Public authorities should interpret any information on'. broadly. Information that would inform the public about matters affecting the environment or enable them to participate in decision making, and help to achieve that purpose is likely to be environmental information, even if the information itself does not directly mention the environment.

8 1. 5. What is environmental information? (regulation 2(1) EIR). Version: 20161107. 17. The test that public authorities should apply is whether the information is on or about something falling within the definitions in regulations 2(1)(a)-(f), and not whether the information directly mentions the environment or any environmental matter. Example In Ofcom v ICO and T-Mobile [EA/2007/0078, 4 September 2007] the First Tier Tribunal considered the application of any information on'. The applicant requested information about the location, ownership and technical attributes of mobile phone cellular base stations. Ofcom argued the names of mobile network operators were not environmental information as they did not constitute information about either the state of the elements of the environment . or the factors . that may affect those elements.. The Tribunal disagreed and commented that the name of a person or organisation responsible for an installation that emits electromagnetic waves falls comfortably within the meaning of the words any information on.

9 Radiation . In our view it would create unacceptable artificiality to interpret those words as referring to the nature and effect of radiation, but not to its producer. Such an interpretation would also be inconsistent with the purpose of the Directive, as expressed in the first recital, to achieve a greater awareness of environmental matters, a free exchange of views [and] more effective participation by the public in environmental decision making . It is difficult to see how, in particular, the public might participate if information on those creating emissions does not fall within the environmental information regime . On further appeal (to the High Court and the Court of Appeal). Ofcom did not challenge the Tribunal finding that the names were environmental information. 18. In line with the Tribunal's comments above, it would not be acceptable to separate out (as non-environmental information) details such as names, which form an integral part of information falling under the EIR.

10 Example 6. What is environmental information? (regulation 2(1) EIR). Version: 20161107. In Mersey Tunnel Users Association (MTUA) v Information Commissioner and Halton Borough Council [EA/2009/0001, 24. June 2009] the MTUA had requested information about a proposal to introduce tolling on an existing bridge and a proposed bridge across the River Mersey. The Tribunal agreed with the Commissioner that the information fell within the definition of environmental information. The council had argued that the information on tolling was not sufficiently connected to the measure' (ie the proposal to construct a new bridge) to be environmental. However the Tribunal stated: there is no dispute that the Mersey Gateway Project will have a significant impact on the state of elements of the environment, such as, at least, the land and the landscape, and on factors such as emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to, such that information relating to it would fall squarely within the definition of environmental information under Regulation 2(1).