Line to take - LTT122 - Documents containing both environmental & other information

• FOI/EIR: FOI
• Section/Regulation: s1, reg 2(1)
• Issue: Documents containing both environmental & other information
• Source: Information Tribunal
• Details: DBERR / FOE (29 April 2008)
• Related Lines to Take: LTT80, LTT82
• Related Documents: EA/2007/0072
• Contact: LA
• Date: 24/08/2009
• Policy Reference: LTT122
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Where a document can be easily divided between environmental and other information then it should be considered in parts to decide which information is caught by EIR and which by FOIA.

Where a document potentially contains both environmental and other information and cannot be easily divided in this way, then a “predominant purpose test” may be applied. This test would be applied to determine the extent to which entire documents or sections of such a document can be taken to be environmental information despite the fact that some of the info within that document / section, when taken in isolation, might not be regarded as environmental information.

Further Information

In the Tribunal case Department for Business Enterprise and Regulatory Reform v the Information Commissioner& Friends of the Earth the Tribunal commented on the issue of documents which may contain both environmental and other information.

It said (at para 29) that:

“Where a document divides easily into parts where the subject matter of each part is easily identifiable this should enable the document to be considered in parts so as to decide which information is caught by EIR. Where this is not the case do we need to review the document in exacting detail to decide which parts or even paragraphs or sentences are subject to EIR or FOIA? To do so would be an extremely onerous approach on those needing to apply the law. But our information laws are based on requests for information not documents. We believe that Parliament may not have appreciated such a consequence and that where possible would have wanted a pragmatic approach to be taken. Therefore we find that where the predominant purpose of the document covers environmental information then it may be possible to find that the whole document is subject to EIR. Where there are a number of purposes and none of them are dominant then it would appear that the public authority has no choice but to review the contents of the document in detail.”

The ICO considers that where a document can be easily divided, and also where there is no dominant purpose and so a detailed review is required, then there is no difference between the Tribunal’s approach and the ICO approach as set out LTT80 on Defining Environmental Information. In these situations a “slicing up” approach (between Environmental and other information) should be taken.

Where the document cannot be easily divided (most likely where there are potentially mixed information sentences and/or mixed information paragraphs), and the predominant purpose of the document covers environmental information, then the ICO is prepared to accept the Tribunal’s pragmatic approach.

When to use a predominant purpose test

The ICO test for deciding if information is environmental or not is as set out in LTT80. The predominant purpose test is an additional test which should only be applied in situations, such as in the DBERR case, where there is a single document that potentially contains both Environmental and other information which is inextricably linked and therefore cannot be easily separated. The table below may be used as a guide as to when the predominant purpose test will apply:

Q1 Can the document be easily divided into environmental and non-environmental info?

• Yes - consider the document in parts based on LTT80
• No - see Q2

Q2 Does the predominant purpose of the document/section cover environmental info?

• Yes — the whole document may be subject to EIR but see LTT82
• No— see Q3

Q3 If the document has a number of purposes and none of them are dominant:-

• Review the contents in detail based on LTT80

Limits of predominant purpose test

It is important to recognise that the predominant purpose test applied by the Tribunal here only relates to determining the extent to which entire documents or sections of such a document can be taken to be environmental information despite the fact that some of the information within that document/section, if it could be easily separated out and taken in isolation, might not be regarded as environmental information.

The language used should not be misinterpreted as establishing a dominant purpose test, similar to that applied when assessing derogation issues in BBC cases, in order to decide if information is environmental or not.

Applying a BBC type dominant purpose test would be the equivalent of just asking question 2 from the table above, rather than first asking question 1.

The relevance of a wide interpretation of “any information on”

The ICO considers, however, that following the approach set out in LTT8O and applying a wide interpretation of “any information on” (as per LTT82) may in any case reduce the incidence of this type of case as it will bring a wider range of information under the EIR anyway.

Predominant purpose of the document does cover environmental information

As detailed above, the Commissioner is prepared to accept the Tribunal’s pragmatic approach where a document cannot be easily divided and the predominant purpose of the document covers environmental information.

When the document cannot be easily divided and the predominant purpose of the document does not cover environmental information further issues arise and in most cases a detailed analysis of the information will still be needed.

This is because the Commissioner’s view is that applying a pragmatic approach in a predominantly FOIA situation has the potential to disadvantage the applicant. It is generally accepted that the EIR provide a more liberal access regime than FOIA (information is more likely to be disclosed under EIR than under FOI) because of the more limited exceptions and the fact that all the exceptions are qualified. Therefore, if an information request is predominantly FOI, but has some elements of environmental information then considering everything under FOIA would mean that disclosure of the environmental information is considered under a less liberal access regime and the applicant may be refused information under FOIA that they would be provided with under EIR.

There may be exceptional cases where we would be prepared to take a pragmatic approach and consider all information under FOIA but this route should not be taken without first getting advice from a signatory via a case review panel. If you wish to propose that a case is considered in this way then your case panel submissions should detail why you think an exception should be made (e.g. the amount of environmental comprises a very small proportion of the total information, there is an equivalent exception / exemption under EIR / FOIA, the public interest in disclosure is limited, the risk of the complainant being disadvantaged is small). It will be important to relate any reasons given to the information and request in question and not just ‘tick boxes’. The case panel will then assess the risk and advise if an exception can be made.

The appropriateness of taking a pragmatic approach will always be considered on a case by case basis. For example, in some cases a single line of environmental information may be considered to be of little significance in the overall context of the totality of information requested. However, in other cases in could be that although the proportion of environmental information is small, its content is significant enough to mean that a pragmatic approach will not be taken.