[2024] UKUT 320 (AAC)

Environmental information

39 (1) Information is exempt information if the public authority holding it—

is obliged by environmental information regulations to make the information available to the public in accordance with the regulations, or

would be so obliged but for any exemption contained in the regulations.

(1A) In subsection (1) “environmental information regulations” means—

regulations made under section 74, or

regulations made under section 2(2) of the European Communities Act 1972 for the purpose of implementing any EU obligation relating to public access to, and the dissemination of, information on the environment.

The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).

Subsection (1)(a) does not limit the generality of section 21(1).

Information accessible to applicant by other means

Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.

For the purposes of subsection (1)—

information may be reasonably accessible to the applicant even though it is accessible only on payment, and

information is to be taken to be reasonably accessible to the applicant if it is information which the public authority or any other person is obliged by or under any enactment to communicate (otherwise than by making the information available for inspection) to members of the public on request, whether free of charge or on payment.

For the purposes of subsection (1), information which is held by a public authority and does not fall within subsection (2)(b) is not to be regarded as reasonably accessible to the applicant merely because the information is available from the public authority itself on request, unless the information is made available in accordance with the authority's publication scheme and any payment required is specified in, or determined in accordance with, the scheme.