Line to take - LTT82 - "Any information on"

• FOI/EIR: EIR
• Section/Regulation: reg 2(1)
• Issue: "Any information on"
• Source: IT, policy team, European Parliament
• Details: Ofcom / Health Protection Scotland; Kirkaldie / Thanet District Council; Council Directive 2003/4/EC; Mersey Tunnel Users Association / Halton Borough Council
• Related Lines to Take: LTT80, LTT83, LTT84
• Related Documents: EA/2006/0078 (Ofcom), EA2006/0001 (Kirkaldie), EA/2009/0001 (MTUA), 2003/4/EC, PARF on case FS50301488
• Contact: LA/KP
• Date: 18/10/2010
• Policy Reference: LTT82
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

In order to be consistent with the purpose stated in the first recital of Council Directive 2003/4/EC - from which the Regulations are derived - “any information ... on” in Regulation 2 of the EIR should be interpreted widely.

Further Information

Environmental information is defined in regulation 2 as

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

• 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;
• 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);
• 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;
• reports on the implementation of environmental legislation;
• cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c) ; and
• the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of elements of the environment referred to in (b) and (c);”

LTT80 on defining environmental information makes it clear that, for 2(1)(b) to (f), it is not necessary for the information itself to have a direct effect on the elements of the environment, or to record or discuss an effect. What is relevant instead is that the information should be on something falling within these sections.

In order to establish this connection consideration must be given to the meaning of any information ...on in the context of regulation 2.

This point was considered by the Tribunal in Ofcom v the ICO and T-Mobile where the applicant had requested information about the location, ownership and technical attributes of mobile phone cellular base stations. Ofcom had argued that the names of Mobile Network Operators were not environmental information as they did not constitute information “about either the state of the elements of the environment...or the factors...that may affect those elements.”

The Tribunal disagreed and commented (at paragraph 31) that “The name of a person or organisation responsible for an installation that emits electromagnetic waves falls comfortably within the meaning of the words "any information ... on ... radiation". In our view it would create unacceptable artificiality to interpret those words as referring to the nature and affect of radiation, but not to its producer. Such an interpretation would also be inconsistent with the purpose of the Directive, as expressed in the first recital, to achieve "...a greater awareness of environmental matters, a free exchange of views [and] more effective participation by the public in environmental decision making...". It is difficult to see how, in particular, the public might participate if information on those creating emissions does not fall within the environmental information regime.” At further appeal (to the High Court and the Court of Appeal) Ofcom did not challenge the Tribunal's finding that the names were environmental information.

The ICO agrees with the Tribunal’s comments and would not accept the approach of separating out (as non environmental information) details such as names, which form an integral part of information falling under the EIR.

The Commissioner's more general approach will be to interpret “any information...on...” fairly widely. The relevant Oxford English Dictionary definition of “on” is “In reference to, with respect to, as to, concerning, about”. The ICO view, in line with the purpose expressed in the first recital of the Directive, is that “any information...on...” will usually include information concerning, about or relating to the measure, activity, factor etc in question. In other words information that would inform the public about the matter under consideration and would therefore facilitate effective participation by the public in environmental decision making is likely to be environmental information (subject to the linking process set out in LTT80).

In addition, information may still be “on” a factor or measure which affects or is likely to affect the elements of the environment, even where the effect has not occurred in the specific case. For example, information relating to emissions testing where the result is that there are no emissions, or experiments which demonstrate that certain factors are unlikely to have an environmental impact, may still be environmental information. This is because information about the absence of a factor affecting the environment is still information “on” that factor (PARF in FS50301488). See also LTT83 (future likely effects) in relation to 2(1)(c).

The following examples from recent ICO case work should assist in the application of this judgement.*

Examples:

• Payments made under the Common Agricultural Policy — see Policy Advice Request Form for advice given.
• Information on tolling/road congestion charging and a proposal to build a new bridge — see Case Review Panel notes for details of discussion and decision. This decision was confirmed by the Tribunal in Mersey Tunnel Users Association (MTUA) v ICO and Halton Borough Council

(EA/2009/0001) — see below.

Comment on Kirkaldie

In Kirkaldie v the ICO and Thanet District Council the IT found that the EIR applied and said that “The Legal Advice...related to the enforceability of the s106 Agreement, land usage and other planning matters. The Tribunal finds that for the purposes of Reg 2(c) EIR this agreement was an “environmental agreement under the Town and Country Planning Act 1990...”.

This ICO view is that the argument articulated by the IT up to this point was sufficient to bring the information within the definition of environmental information. The information is “on” an environmental agreement, and the environmental agreement is a measure affecting or likely to affect the elements in 2(1)(a) and (b).

The Tribunal continued however that “Entering into and extending such an agreement is the sort of measure envisaged by the rule which is "likely to affect the elements and factors referred to in (a) and (b)" as well as measures or activities designed to protect these elements”.

The ICO view is that it is not necessary to say that “Entering into and extending such an agreement” is also a measure. Once it is established that the s106 Agreement is a “measure affecting or likely to affect the elements and factors referred to in (a) and (b)” then the legal advice is environmental information because it is “information on” this measure.

Planning decisions

In a similar way, when thinking about planning decisions it is not necessary to say that the decision (to approve or refuse planning permission) is itself a measure affecting or likely to affect the factors and elements in 2(1)(a) and (b). It will sufficient to establish whether the particular planning regulation under which the decision has been made is a measure; affecting or likely to affect the factors and elements in 2(1)(a) and (b), or designed to protect those elements. If it is then the decision, and the related planning application become environmental information because they are information on the implementation of the particular planning regulation in question. This mirrors the approach taken in the example of the Common Agricultural Policy payments given above.

This shouldn't be taken to mean that all information contained within planning files will inevitably be environmental information. It will be necessary to identify what measure the information is on (i.e. the particular planning regulation being applied) and ensure that this is a measure; affecting or likely to affect the factors and elements in 2(1)(a) and (b), or designed to protect those elements.

An alternative approach would be to consider if the planning application is a measure (a plan) likely to affect the elements of the environment.

MTUA v IC and Halton Borough Council (EA/2009/0001)

This case concerned information relating to the proposed tolling of two bridges (one existing and one new) as part of the Mersey Gateway project. The public authority, applying the "remoteness" test used by DEFRA, argued that information on tolling was not sufficiently closely connected to the "measure" (in this case the Mersey Gateway project) to be environmental information. However, the Tribunal agreed with the Commissioners reasoning that "tolling is an integral part to the Project and its viability" (para 69). It was not therefore necessary to demonstrate — as had also been argued — that tolling itself was a measure affecting the environment.

(*) It should be noted that the ICO line on this subject has developed and changed over time and that there is some inconsistency in the Decision Notices issued to date. The examples provided have been chosen as they reflect the ICO’s current position.