Transcript Document

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
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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)
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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
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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
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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
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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)
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(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 nondisclosure
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
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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
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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