Aarhus Convention Task Force on
Access to Information
Item 2(a)
Scope of Environmental Information
Presentation by UK
Palais des Nations, 3-5 December 2014
MOCK-UP
Agenda
1. Policy issues
•
•
Using and understanding two regimes
New Boundaries Guidance to help public authorities
2. Legal developments
3. Challenges
•
•
Differences in interpretation
Classification of non-environmental information and
lack of case-law on interpretation
4. Lessons learned
2
Policy Issues
• UK has two information regimes:
– Environmental Information Regulations 2004 (EIRs) implement
EU Directive 2003/4/EC and the Aarhus Convention, and
– Freedom of Information Act 2000 (FOIA) is purely domestic
legislation covering all other information
• Why two? Because of subtle but significant differences in
approach, including the scope and nature of the
exceptions
• Which regime to employ? Public authorities need to
assess whether the information being requested falls
within the definition of environmental information
Policy Issues – Need for Guidance
• Proper classification of information as non-environmental
(subject to the FOIA) or environmental (subject to the
EIRs) is a matter of law
• Requests should be handled under the EIRs only where
the information clearly falls within the definition of
environmental information
• Information has to
– be directly on an element of the environment, or
– affect or be likely to affect an element of the environment
in order to fall within the definition
Policy Issues – Guidance Produced!
• Defra has developed guidance to help those handling
requests for information to distinguish between
environmental and non-environmental information
• Our guidance:
– Introduces the EIRs and the concept of “environmental
information” as defined in the Aarhus Convention
– Helps users apply the definition of environmental information
– Gives examples of actual cases examining the definition
– Includes a flowchart to help test information against the definition
– Helps users achieve a consistent approach to using EIRs or
FOIA
Policy Issues – Guidance Flowchart
Legal developments
• There is limited domestic case-law to help public
authorities understand how to interpret the definition and
decide where information merely has an environmental
context
• First-tier Tribunal decision in the Uttlesford case (planning
applications) clarified where information was “a step
further away from the primary focus”
• Judge Hughes stated that handling non-environmental
information under the EIRs “[flies] in [the] face of the
principle of legal certainty by extending the meaning of
words beyond their normal meanings."
Challenges
• The main difficulties derive from the interpretation of
“information … on” in Article 2(3) of the Aarhus Convention
• A broad interpretation by the UK regulator has led to
information that arguably has nothing to say about the
primary focus of the Aarhus Convention, i.e. the state of
the elements of the natural environment, being handled
under the EIRs
• There can be differences of opinion between public
authorities, the UK regulator and the appeal tribunals and
courts on the interpretation of the definition
Lessons Learned
• Need a forum to share information and key messages with
the aim of promoting best practice
• Task Force can be invaluable in this role
• UK would welcome the establishment of a network of
contacts to share information and best practice
– to improve our collective knowledge, and
– learn from other’s experience in applying and interpreting the
Aarhus Convention
• UK is willing to share its court judgments/decisions and
other information with other Parties to the Convention
Thank You!
Please contact us
• UK Delegates promoting access to environmental
information:
• Department for Environment, Food & Rural Affairs
• Mike Kaye [email protected]
• Valerie Hope [email protected]