FT/EA/2024/0207 - [2025] UKFTT 01276 (GRC)

The EIRs provide individuals with a general right of access to environmental information held by public authorities, subject to some exceptions. Regulation 5(1) provides:

“…a public authority that holds environmental information shall make it available on request.”.

The term ‘environmental information’ is defined in regulation 2(1) which, so far as is material, states:

“…any information in written, visual, aural, electronic or any other material form on—

(a)

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;

(b)

factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c)

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements…”.

The definition of ‘environmental information’ is to be given a broad meaning in accordance with the purpose of the underlying European Authority Directive which the EIRs implement (Direction 2004/4/EC). (Footnote: ²)

Therefore, pursuant to regulation 5(1), a person who has made a request to a public authority for ‘environmental information’ is entitled to have that information made available to them, if it is held by the public authority. However, that entitlement is subject to the other provisions of the EIRs, including some exceptions and qualifications which may apply even if the requested environmental information is held by the public authority. The opening wording of regulation 5(1) (that is, the wording immediately preceding the extract of that regulation quoted above) provides:

“Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations…”.

Part 3 of the EIRs contains various exceptions to the Duty to Disclose. It is therefore important to note that the EIRs do not provide an unconditional right of access to any environmental information which a public authority does hold.

In order for some exceptions to the Duty to Disclose to be engaged, there must be some prejudice to the matters referred to in the specific exceptions. These are known as ‘prejudice-based’ exceptions. Other exceptions apply only to a particular category or class of environmental information, which are known as ‘class-based’ exceptions. Regulation 12(5)(e) is a prejudice-based exception.

Requests for ‘environmental information’ are normally dealt with under the EIRs rather than FOIA, pursuant to section 39(1) (which contains an exemption to disclosure of environmental information under FOIA).