Data Governance Atlas UK edition

Environmental Information Regulations 2004

In force

A separate right of access to environmental information held by public authorities in England, Wales and Northern Ireland and UK-wide public authorities, implementing the Aarhus Convention through Directive 2003/4/EC. It is wider than FOI in three ways: requests can be made in any form, including verbally; the presumption runs in favour of disclosure; and every exception is subject to the public interest test. The most misunderstood point is that the requester does not choose the regime: if the information is environmental, these Regulations apply even where FOIA 2000 was cited.

Identity

Citation
SI 2004/3391
Jurisdiction
United Kingdom
Regime
Environmental information
Applies to
England and Wales, Northern Ireland
Type
Secondary legislation
Main commencement
2005-01-01

In force from 2005-01-01, alongside the FOI right of access. Derived from EU law and continued in UK law after Brexit as assimilated law.

Reads together with

  • FOIA 2000

    The FOI Act exempts environmental information so that these Regulations apply, and reg 18 applies the FOI enforcement and appeal machinery.

  • Data Protection Act 2018 and UK GDPR

    Personal data in environmental information is handled under reg 13, which applies the data protection principles.

Structure

What each Part or Chapter does, and the provisions worth knowing inside it. An orientation to the shape of the instrument, not a substitute for reading the official text.

Interpretation and scope

Who is a public authority and what counts as environmental information.

  • reg 2 Environmental information is broadly defined: the state of the elements of the environment, factors and measures affecting them, reports and analyses, and the state of human health and safety as affected by them. Public authority includes bodies under the control of a public authority with public responsibilities relating to the environment.
Access

The duty to disclose, time limits, charges and advice.

  • reg 5 Make environmental information available on request, as soon as possible and no later than 20 working days.
  • reg 7 Extension to 40 working days where the complexity and volume of the information make the 20-day limit impracticable.
  • reg 8 Reasonable charges, with no charge for inspecting public registers.
  • reg 9 Advice and assistance.
Exceptions

Grounds for refusal, all subject to the public interest test and the presumption in favour of disclosure.

  • reg 12(1) Exceptions apply only where the public interest in maintaining the exception outweighs the public interest in disclosure.
  • reg 12(2) A presumption in favour of disclosure.
  • reg 12(4) and (5) Class-type exceptions and adverse-effect exceptions, listed below.
  • reg 13 Personal data.
Refusal, review and enforcement

How refusals are given and challenged.

  • reg 14 Refusal in writing, with reasons and the public interest reasoning.
  • reg 11 Review or reconsideration of the response on the applicant's representations.
  • reg 18 Enforcement and appeals through the FOI machinery.
  • reg 19 Offence of altering records with intent to prevent disclosure.

Asymmetry checklist

Ten questions every profile answers explicitly. "None found" means the point was examined and the instrument has nothing distinctive on it.

# Point Finding Notes
1 Territorial extent Asymmetry found Applies to public authorities in England, Wales and Northern Ireland and UK-wide public authorities. Scottish public authorities use the EIRS 2004 instead, regulated by the Scottish Information Commissioner. Environmental information follows the FOI devolution pattern.
2 Commencement None found Fully in force since 2005-01-01. No phased provisions.
3 Sunset / mandatory review None found No sunset or statutory review. The Regulations continue as assimilated law after Brexit; the UK remains a party to the Aarhus Convention.
4 Criminal liability Asymmetry found One offence, reg 19: altering, defacing, blocking, erasing, destroying or concealing a record with intent to prevent disclosure after a request. Summary only, fine not exceeding level 5.
5 Civil liability None found No private right of action. Challenge runs through reg 11, then the regulator, then appeal, under the FOI machinery applied by reg 18.
6 Regulatory enforcement toolkit Asymmetry found reg 18 applies the FOI enforcement provisions: decision, information and enforcement notices and practice recommendations. No monetary penalties.
7 Personal / director liability Asymmetry found The reg 19 offence can be committed by the authority and by any person employed by it, an officer of it or subject to its direction.
8 Public vs private sector split Asymmetry found Wider than FOI. Public authority includes bodies that carry out functions of public administration and bodies under the control of a public authority that have public responsibilities, exercise public functions or provide public services relating to the environment. Some private companies, such as privatised utilities, can be caught.
9 Legal-person coverage Asymmetry found Any applicant may request, including companies and campaign groups, in any form.
10 Exemptions, with their conditions Asymmetry found Exceptions in reg 12(4) and (5) and reg 13. Unlike FOI there are no absolute exceptions apart from parts of the personal data rule: every exception is subject to the public interest test, read with a presumption in favour of disclosure. Information on emissions cannot be withheld under several of the adverse-effect exceptions.

Criminal liability

A distinct track, separate from the regulatory penalties below. The same failure can attract both: a penalty notice against the organisation and a prosecution of the individual.

reg 19: Altering etc. records with intent to prevent disclosure Fine only

Where a request has been made and the applicant would have been entitled to the information, it is an offence for the authority, or a person employed by it, an officer of it or subject to its direction, to alter, deface, block, erase, destroy or conceal any record held by the authority with the intention of preventing its disclosure.

Mens reaMens reaThe mental element an offence requires, such as intention, knowledge or recklessness. Most DPA 2018 offences need knowledge or recklessness.Defined in: General criminal law
Intention to prevent disclosure
Penalty
Fine not exceeding level 5 on the standard scale; summary only
Imprisonment
Not available

Civil liability

No right of action. The routes are review under reg 11, complaint to the regulator, and appeal (First-tier Tribunal (General Regulatory Chamber)).

Regulatory enforcement

Penalty ceiling
No monetary penalties.
  • Decision notice reg 18

    Decides a complaint and can require disclosure.

  • Enforcement notice reg 18

    Requires steps to comply.

  • Practice recommendation reg 18

    Recommends conformity with the code of practice.

Personal / director liability

Available
Yes
Basis
reg 19

Employees, officers and anyone subject to the authority's direction can be prosecuted personally.

Legal-person coverage

Covers legal persons
Yes

Any applicant, including legal persons.

Public / private sector split

Separate regimes
Yes

Public authorities, more widely defined than under FOI.

  • FOI public authorities

    Bodies that are public authorities for FOI purposes.

  • Bodies with public environmental functions

    Bodies carrying out functions of public administration, and bodies under the control of a public authority with environmental responsibilities, functions or services.

Exemptions

Recorded with their trigger conditions, not as bare names, most are conditional tests applied case by case rather than blanket carve-outs.

reg 12(4)(a), Information not held

Trigger

The authority does not hold the information when the request is received.

reg 12(4)(b), Manifestly unreasonable

Trigger

The request is manifestly unreasonable, for example vexatious or grossly burdensome to comply with. Subject to the public interest test.

reg 12(4)(c), Formulated in too general a manner

Trigger

The request is too general and the authority has given advice and assistance to clarify it. Subject to the public interest test.

reg 12(4)(d), Material in course of completion, unfinished documents or incomplete data

Trigger

A class-type exception for unfinished material. Subject to the public interest test.

reg 12(4)(e), Internal communications

Trigger

Communications within the authority. Subject to the public interest test.

reg 12(5)(a), International relations, defence, national security or public safety

Trigger

Disclosure would adversely affect one of these interests. Subject to the public interest test.

reg 12(5)(b), Course of justice and inquiries

Trigger

Disclosure would adversely affect the course of justice, a fair trial, or a criminal or disciplinary inquiry. Subject to the public interest test.

reg 12(5)(c), Intellectual property rights

Trigger

Disclosure would adversely affect intellectual property rights. Subject to the public interest test.

reg 12(5)(d), Confidentiality of proceedings

Trigger

Disclosure would adversely affect the confidentiality of the proceedings of a public authority where that confidentiality is provided by law. Not available for information on emissions.

reg 12(5)(e), Commercial confidentiality

Trigger

Disclosure would adversely affect the confidentiality of commercial or industrial information where provided by law to protect a legitimate economic interest. Not available for information on emissions.

reg 12(5)(f), Interests of the person who provided the information

Trigger

Disclosure would adversely affect the interests of a person who supplied the information voluntarily, was not obliged to and has not consented. Not available for information on emissions.

reg 12(5)(g), Protection of the environment

Trigger

Disclosure would adversely affect the protection of the environment to which the information relates, for example the location of rare species. Not available for information on emissions.

reg 13, Personal data of someone other than the applicant

Trigger

Disclosure would contravene the data protection principles, or certain data subject rights conditions apply. The applicant's own personal data is handled as subject access.

The first condition is absolute; others are subject to the public interest test.

Interactions and conflicts

The cross-instrument texture that profiling an Act in isolation misses, including where the real answer to a question about this Act is found in a different one.

Instrument Relationship Note
FOIA 2000 Cross-reference Environmental information is routed here from the FOI Act. Enforcement and appeals borrow the FOI machinery through reg 18.
Counterpart regulations Cross-reference The other UK environmental information regime, for the other set of public authorities.
Data Protection Act 2018 Reads with Personal data inside environmental information is assessed under reg 13 against the data protection principles.

Questions answered

The questions this instrument most often raises, with the answer and the authority for it.

Tools, maps and checklists for this instrument

Which access regime applies?

Decision tool

Route an information request to the right law and regulator: subject access, FOIA, EIR, FOISA or the Scottish EIR.

EIR request response (EIR 2004)

Checklist for environmental information

Work a request for environmental information to a public authority outside Scotland.

Explainers

Activities this instrument governs

ActivityRole hereProvisions
Requests for environmental informationPrimaryregs 5, 12 and 13

Codes of practice and guidance

Regulators, tribunals and prosecutors

Sources

Updated