Environmental Information Regulations

Professor Robert Lee | 8 years ago

HM courts and tribunals

There have been three significant cases from the First Tier Tribunal so far this year spelling out what is meant by ‘environmental information’ under the Environmental Information Regulations 2004 (2004 No. 3391).

In order to implement the E.U. Directive on Public Access to Environmental Information (Directive 2003/4/EC) and assist the UK in meeting its ‘first pillar’ requirements under the Aarhus Convention (The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) access to environmental information is not included in the Freedom of Information Act 2000 (see section 39 of the Act). Instead there is a separate regime under the 2004 Regulations.

Environmental information is defined in r2 of the Regulations as including:

information on 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”.

GM Crops

One case this year has concerned GMOs which are specifically included in the definition. The question in G M Freeze v Department of Environment Food and Rural Affairs (DEFRA) (Appeal No. EA/2010/0112; Decision of the First Tier Tribunal, 8 March 2011) was whether the adventitious sowing of GM seed amounted to an ‘emission’ under the Regulations. The importance of this is that a number of the exceptions to the provision of information within the Regulations and the Directive (r. 12(9) and Art 4(2) respectively) are disapplied where the information involves ‘emissions’.

However, the planting of GM seed was not thought by the Tribunal to constitute an emission. This term implied something other than a deliberate release. As such this did not prevent GM Freeze obtaining the data (the grid reference of the farm field) which it sought. However DEFRA argued (and the Tribunal agreed) that this was personal data (one of the exceptions). That being so the onus was on GM Freeze to show that the disclosure of the personal data must be necessary for the pursuit of legitimate public interests.

GM Freeze failed to convince the Tribunal that this was the case. On the facts, the accidental presence of GMOs was small (a concentration of 0.05% or 5 plants in 10,000). The argument of legitimate public interest was the verification of DEFRA’s analysis on risk and the necessity to warn neighbouring growers to allow for remedial action. But the Tribunal ruled that there was “no measurable risk” of dilution of a conventional crop within the vicinity of the contamination and no realistic likelihood of adverse consequences from the incident.

So planting of GM is unlikely to be considered an emission. In formation on planting may be the subject of disclosure but it will be necessary for applicants requesting information to demonstrate where the public interest lies.

Landscape

The other two cases concern the notion of landscape. In one, Omagh District Council v Information Commissioner (EA/2010/0163, Decision of First Tier Tribunal, 20 May 2011) the information sought was said to relate to ‘landscape’. The information in question was an Equality Assessment (and the names, departments and job titles of those Council officials responsible for it) connected to a decision to construct a memorial built on Council-owned land to commemorate IRA members who died during the hunger strikes of 1981.

The objection, here, to disclosure was that the information was not environmental but related to cultural issues underpinning a controversial decision to construct the memorial. But the Tribunal took a ‘motive blind’ view of the request for information. Since a challenge to the Equality Assessment could lead ultimately to the removal of the memorial, it did relate to landscape and the information sought amounted to environmental information.

On the other hand, in Black v Information Commissioner (EA/2011/0064; Decision of the First Tier Tribunal, 8 September 2011) a request to English Heritage for information relation to listed buildings was not necessarily caught by the landscape provisions. Where that information related to internal fixtures (such a fireplaces), this could not be said to be environmental information within the scope of the 2004 regulations.

These two cases suggest that the definition of environmental information does not relate exclusively to the natural environment but can include that environment as altered by human activity. Elements of the definition (such as the meaning of landscape) can receive quite a wide interpretation (as in the Omagh case) but there must be elements of visual amenity at the very least.

About the author

Professor Robert Lee

ERIC Director and Head of Birmingham Law School, Professor Robert Lee was co-director of the publicly funded Centre for Business Relationships, Accountability, Sustainability and Society at Cardiff University (BRASS). He is an expert on regulation, including environmental regulation and regulation of biotechnology and biomedicine. He previously worked for two top 10 UK law firms, and remains a professional-development consultant to one of the largest law firms in Europe, working on pan-European delivery of legal services.