FOI and EIR – Rights to information

Damien Welfare

2-3 Gray’s Inn Square

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

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

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

Format of response

Applicant may choose:

- permanent form

- inspection

- summary

- other form

Authority must comply so far as reasonably practicable

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

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.

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

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”

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

Exemptions – absolute and qualified

• Absolute:(i) accessible by other means – s21(ii) [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)

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

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)

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)

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

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

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

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

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

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

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

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

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

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)

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 Baker v IC/Vauxhall Tower case, 1 June 2007)

Exceptions – Reg 12(5)

• Disclosure would adversely affect:

(a) international relations, national security

(b) course of justice

(c) 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

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

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

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

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”

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

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

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

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