Summary

Public access to environmental information is governed by international agreements, European Directives and UK legislation.

The UK’s Environmental Information Regulations 2004 (EIR) provide public access to environmental information held by public authorities. The Freedom of Information Act provides public access to most other types of information held by public authorities.

The EIR implement the European Council Directive 2003/4/CE on public access to environmental information. The purpose of the directive is to ensure that environmental information is available to the public and to require public authorities to make the environmental information they hold available on request. The source of the EU Directive is the Aarhus Convention.

The principle behind the EIR is that allowing public access to environmental information encourages greater awareness of issues that affect the environment and increases public participation in decision-making. The regulations are not limited to official documents, such as permitting data, it can also covers less formal communications such as draft documents, emails and notes etc.

The EIR apply to the environmental information held by public authorities in England, Wales and Northern Ireland. Environmental information held by Scottish public authorities is similar in scope and is covered by the Environmental Information (Scotland) Regulations 2004.

In other public information regulations, the UK Companies Act 2006 requires directors’ reports to include information about greenhouse gas emissions and to report on environmental risks and other matters, including the use of key performance indicators, where appropriate. This does not apply to SMEs.

Climate-related disclosure

The UK is the first country in the world to create a Task Force on Climate-Related Financial Disclosures (TCFD). The Financial Conduct Authority (FCA) has confirmed that from 1 January 2021, premium listed companies in the UK will be required to disclose how climate change affects their business, consistent with the recommendations of the TCFD. The chancellor has also announced a roadmap for mandatory climate risk disclosures by all large companies and financial institutions across the economy by 2025.

This topic highlights the international framework and European Directives, and explains how public access to environmental information is governed in the UK.

In Practice

International Framework

The Aarhus Convention

The Aarhus Convention relates to government accountability, transparency and responsiveness. Issues explored as part of the Convention include pollutant release and transfer registers, genetically modified organisms, electronic information tools, access to justice and strategic environmental assessment. The EU and the UK are signatories to the Convention.

The Convention consists of three key elements.

  1. Public access to environmental information: public authorities are obliged to share environmental information relevant to their functions, such as on: the quality of water, air and the atmosphere; land and biological diversity; energy, noise, development plans and policies; and the effects of these on human health, safety and the environment.
  2. Public participation in environmental procedures: enables individuals and environmental organisations to participate in environmental decision-making. Public authorities have to inform the public of relevant proposals so that they can submit their comments, which must be taken into consideration.
  3. Public access to justice in environmental matters: enables citizens and environmental NGOs to act as “environmental watchdogs” by granting them the right to go to court in cases of failure to apply environmental law.

EU Directives have been introduced to implement the first two pillars of the Aarhus Convention. Enabling legislation to implement the third pillar — public access to justice in environmental matters aims at ensuring that national courts can order matters to be put right.

The United Nations Economic Commission for Europe (UNECE) facilitates the Aarhus Convention. The UNECE Protocol on Pollutant Release and Transfer Register (PRTR), which the UK has signed, requires public authorities to provide pollution data to the public on both point and diffuse sources of pollution, and the protocol makes a clear distinction between releases to the environment and transfers to another operator. The protocol ensures transparency and comparability across different countries.

The Environment Agency and Defra are involved, on behalf of the UK, in the convention’s working groups on PRTRs and on electronic information tools. The PRTR group is producing a legally binding instrument on PRTRs as a protocol to the convention, which will set up worldwide standards for PRTRs. The protocol came into force in 2008.

The Convention on Long-Range Transboundary Air Pollution

The Convention on Long-Range Transboundary Air Pollution (CLRTAP) was drafted by the UNECE following scientific research demonstrating the link between sulphur emissions in continental Europe and the acidification of Scandinavian lakes. The Convention has been extended to include the reporting of a number of air pollution emissions, such as carbon monoxide, nitrogen oxides, ammonia, sulphur dioxide, non-methane volatile organic compounds, persistent organic pollutants and heavy metals. The UK contribution to this data is usually collected through the National Atmospheric Emissions Inventory (NAEI).

The convention lays down the general principles of international co-operation for air pollution abatement and provides an institutional framework linking science and policy.

EU Framework

The EU is responsible for developing legally binding policies and directives to ensure compliance with international treaties. Directives set an overall framework and policy for Member States to introduce their own regulations to implement directives.

There are several principal EU directives that relate to public access to environmental information, including:

  • Directive 2010/75/EU on industrial emissions (IED)
  • Directive 2003/04/EC on public access to environmental information
  • Directive 2003/35/EC for public participation relating to environment plans and programmes
  • Directive 2007/2/EC — Infrastructure for Spatial Information (INSPIRE) aims to promote public access to spatial and infrastructure data that may impact on the environment
  • Directive 2014/95/EU on non-financial reporting including the disclosure of policies on environmental, social and other matters by large undertakings and groups
  • EU Accounts Modernisation Directive 2003 and Transparency Directive 2004.

IED directive

The objective of the Directive 2010/75/EU on industrial emissions (IED) is to prevent or minimise air, water and soil pollution caused by emissions from industrial installations in the EU, with a view to achieving a high level of environmental protection. Under the IED Directive, Member States are required to report emissions data to the European Pollutant Release and Transfer Register (E-PRTR) which is made accessible in a public register. For England and Wales, the Environment Agency and Natural Resource Wales respectively are responsible for reporting to the E-PRTR and uses data gathered under its Pollution Inventory to do so. In Scotland, the Scottish Environment Protection Agency (SEPA) fulfils this requirement through the Scottish Pollutant Release Inventory.

Public access to environmental information directives

The Directive 2003/04/EC on public access to environmental information guarantees the right of access to environmental information held by public authorities. It aims to ensure that environmental information is made available and disseminated to the public. The directive holds that public authorities should not just be reactive but also proactive in providing this information.

Directive 2003/35/EC concerns public participation in environmental procedures. It is predominantly a technical measure amending public participation rights in the Environmental Impact Assessment (EIA), Directive (85/337/EEC), now amalgamated in one text incorporating its main amendments as Directive 2014/52/EU, and the Directive 2010/75/EU on industrial emissions (IED). It also lays down rules for public participation in plans and programmes drawn up within other existing directives.

In England and Wales, Directive 2003/4/EC has been implemented by the Environmental Information Regulations 2004 (SI 2004 No. 3391). In Scotland, the requirements are implemented by the Environmental Information (Scotland) Regulations 2004 in conjunction with the Freedom of Information (Scotland) Act 2002.

Directive 2003/35/EC has been implemented in the UK by means of several statutory instruments covering the particular policy areas which it affects. These include:

  • Environmental Impact Assessment (Uncultivated Land and Semi-natural Areas) (England) (Amendment) Regulations 2005 (SI 2005 No. 1430).
  • Pollution Prevention and Control (Public Participation) (England and Wales) Regulations 2005 (SI 2005 No. 1448) as amended Environmental Permitting Regulations (EPR) combined Pollution Prevention and Control (PPC) and Waste Management Licensing (WML) regulations. 
  • Air Quality Limit Values (Amendment) (England) Regulations 2004 (SI 2004 No. 2888).

The Environment Agency is obliged by various pieces of legislation to maintain and make available public registers of information. The EIR are intended to allow greater access to information and encourage public participation in environmental decisions by improving the transparency of decision-making reached by public authorities. The regulations do this in two ways.

  1. Public authorities must make environmental information available proactively.
  2. Members of the public are entitled to request environmental information from public authorities.

The EU Accounts Modernisation Directive (2003/51/EC) is intended to increase the comparability between companies (except for non-listed small companies) in the EU through a common reporting framework. In particular, the business review must include information about “environmental matters (including the impact of the company’s business on the environment)”.

Directive 2007/2/EC — Infrastructure for Spatial Information in the European Community (INSPIRE) relates to environmental policies, or policies and activities that have an impact on the environment. INSPIRE is based on the infrastructures for spatial information that are created and maintained by the European Member States and aims to promote public access to spatial and infrastructure data that may impact on the environment.

The Directive 2014/95/EU relates to the disclosure of non-financial and diversity information by certain large companies and groups. Companies within the scope of the Directive (not SMEs) will need to disclose information on policies, GHG emissions, risks and outcomes regarding environmental, social and other matters. Companies can use guidelines (eg the UN Global Compact, ISO 26000 Social Responsibility, etc) to report non-financial disclosures. The majority of the disclosures in the Directive are already covered in the strategic report requirements in the Companies Act 2006.

UK Framework

The key regulations in the UK affecting public access to environmental information are:

  • in England and Wales, the Environmental Information Regulations 2004 made under the Freedom of Information Act 2000 (FOIA)
  • in Scotland, the Environmental Information (Scotland) Regulations 2004 made under the Freedom of Information (Scotland) Act 2002.

The main features of the FOIA are as follows.

  • A general right of access to all types of recorded information held by public authorities. This right is subject to certain exemptions most of which require case-by-case consideration of the balance of public interest.
  • All public authorities are required to adopt and maintain a publication scheme which specifies:
    • the classes of information the authority publishes (or intends to publish)
    • the manner in which it is published
    • whether the information is available free of charge or on payment of a fee.
  • Each scheme must be approved by the Information Commissioner.
  • Application to a wide range of public bodies, including agencies and non-departmental public bodies as listed in the schedules to the Act.

Please note that from 1 January 2021, premium listed companies in the UK will be required to make better disclosures about how climate change affects their business, consistent with the recommendations of the Taskforce on Climate-related Financial Disclosures (TCFD).

Environmental information regulations

Both the Environmental Information Regulations 2004 (EIR) and the Environmental Information (Scotland) Regulations 2004 clarify and extend previous rights to environmental information. They give members of the public rights of access to environmental information held by public authorities.

The definition of “environmental information” covers air, land, water, biological organisms, etc but also measures activities which may affect these, including economic analysis of such measures and activities.

Under EIR:

  • Everybody has a right to access environmental information. Disclosure of information should be the default — in other words, information should be kept private only when there is a good reason and the Regulations allow it.
  • Those making inquiries do not need to give a reason for wanting the information and any refusal to disclose relevant details must be justified.
  • All requests for information must be treat equally.
  • Information released under the regulations must be treated as if it were being released to the world at large.

Public authorities publish a schedule of charges for any information that is requested and for which a standard fee is payable. There are certain limited exemptions to the provision of information and any refusal must be made in writing and provide the reasons for the refusal.

Defra takes responsibility for providing the general public with environmental information in support of both sets of regulations. Extensive information is available from Defra’s EIR guidance.

The regulations also require that public authorities proactively provide the public with environmental information through various sources of their own. The Environment Agency, Natural Resources Wales and SEPA carry out this function for England and Wales and Scotland respectively. Much of this information originates from operators in respect of their environmental impacts, for whom there are requirements to report to the Environment Agency and SEPA. These reporting requirements are under separate, more specific legislation.

Some information may be deemed to be commercially confidential and is therefore exempted from the general disclosure requirement.

To whom do the regulations apply?

The EIR place requirements on “public authorities”, including government agencies, government departments, local authorities and the privatised utility companies, to provide environmental information to the public. The term “public authorities” under the EIR is broader than the FOIA definition as it includes all organisations that “carry out functions of public administration”. Organisations that are “under the control” of public authorities may also be covered, for example private contractors providing environmental services, consultancy or research for public authorities.

Organisations need to decide whether they are subject to the EIR and Defra has published guidance to help them do this.

Exemptions to requirements to provide environmental information

The EIR contain a statutory presumption in favour of disclosure of information, but refusal is allowed in certain cases. There are two main types of exemptions that allow public authorities to withhold information: “stand alone” and “adverse impact” exceptions. It is particularly important to note that under the EIR the public interest test applies to all of the exceptions. This means that if the information exists, the public authority must consider whether the public interest in disclosing it outweighs the public interest in withholding it.

A public authority may refuse to disclose information if it does not hold that information when an applicant’s request is received, or if the request relates to material which is still in the course of completion, or to incomplete data, or if the request involves the disclosure of internal communications.

A public authority can also refuse to disclose information if protection of the environment to which the information relates is threatened.

Disclosure of information may also be refused if it would adversely affect international relations, defence, national security or public safety. If the course of justice, or the ability of a public authority to conduct a criminal or disciplinary inquiry may be adversely affected it may also refuse disclosure. Breach of intellectual property rights, infringing confidentiality provided by law for commercial interests, or those of the public authority itself, also give grounds for refusing a request for information.

Further, the regulations hold that a public authority may refuse to meet a request for information that is “manifestly unreasonable”. Examples include a repeat of a previous request, if it is made vexatiously, or as part of a campaign. If the request for information is in too general a manner it may be refused if a public authority has first asked the applicant to provide more detail and has assisted the applicant to do so, but the detail has not been provided.

Personal data which does not pertain to the applicant cannot be disclosed if it would contravene the Data Protection Act 1998.

Public Sources of Information in the UK

Central register

Public authorities are required to proactively disseminate environmental information to the public. In accordance with regulation 4 of the EIR, Defra maintains a central register of statutory and other environmental registers. Every public authority subject to the EIR should provide a link to the central register.

Environment agency’s pollution inventory

In addition to meeting the requirements of the Environmental Information Regulations 2004, the Environment Agency maintains a Pollution Inventory to comply with:

  • the requirements of the Pollution Prevention and Control Regulations 2000. The PPC regime is now applied through the Environmental Permitting (England and Wales) Regulations 2016
  • the Aarhus Convention
  • the data provision requirements of the EPER.

The Pollution Inventory provides information about releases of substances to air, controlled waters and land and off-site transfers of substances from regulated industrial activities.

Emissions to air, water and sewer are reported. Data is also collected on wastes that are transferred off-site to a disposal or recycling facility, as well as sites that dispose of radioactive substances. These sites include nuclear power stations, universities and hospitals.

The main objectives of the Pollution Inventory are to:

  • inform the public about pollution from industrial and other sources in their local area and nationally
  • help environmental regulators protect the environment
  • help the Government to meet national and international commitments and obligations for reporting.

The public can search the pollution inventory in the Environment Agency’s What’s in Your Backyard? website. This service enables users to search on a postcode and discover the number and location of sites where the Environment Agency monitors pollution, searching by pollution type. The website is now closed but still includes access to various related information on air and water quality, industrial pollution and environmental risks. Access is available at apps.environment-agency.gov.uk/wiyby/default.aspx.

Scottish pollutant release inventory

In addition to meeting the requirements of the Environmental Information (Scotland) Regulations 2004, SEPA maintains a Scottish Pollutant Release Inventory (SPRI) to comply with:

  • the requirements of the Pollution Prevention and Control (Scotland) Regulations 2000
  • the Aarhus Convention
  • the data provision requirements of the EPER

The SPRI is an Internet-based coded system for presenting information on chemical or pollutant releases into the environment. The SPRI code reflects the activity or activities permitted to take place on a site as specified in the site authorisation. This information, measured on an annual basis in mass emission terms, includes details of those organisations or companies responsible for emissions, the substances that have been released and the volume (above a predetermined threshold) that has been released.

The inventory allows users to search on specific substances and geographical areas/postcodes. The result of the search lists firms responsible for a particular substance and, for each firm, the quantity of its emissions. The SPRI codes allow Scottish sites to be compared to European sites by providing a common system of categorising industrial activities.

Local authority registers

Local authorities must by law regulate certain types of factory such as glassworks, sawmills, petrol stations and other activities. Businesses whose premises produce pollution are known as “installations,” identified as one of the following.

  • Part A2 sectors regulated under integrated pollution prevention and control, known as Local Authority Industrial Pollution Prevention and Control (LA-IPPC).
  • Part B known as Local Air Pollution Prevention and Control (LAPPC).

Under local authority pollution prevention and control and local authority integrated pollution control, the local authority regulator has a duty to maintain a public register of documentation relating to the application for permits, variations, transfers, surrenders, appeals, enforcement action, revocation and suspension of permits. Under certain conditions information can be omitted for reasons of commercial confidentiality.

Under the contaminated land regime, local authorities are also required to maintain a publicly accessible register of information including:

  • the designation of special sites
  • prescribed details in relation to remediation notices
  • remediation statements
  • notifications of claimed remediation
  • convictions.

Local authorities’ planning departments hold a wealth of publicly available and environmentally relevant material associated with the planning regime, including environmental statements for the purposes of environmental impact assessments and strategic environmental assessment.

National atmospheric emissions inventory

The National Atmospheric Emissions Inventory (NAEI) is the official air emissions inventory for the UK. It is compiled and updated annually by the National Environmental Technology Centre on behalf of BEIS and Defra. The NAEI is a total air emissions inventory aggregated for the UK and includes emission estimates for a wide range of important pollutants from many man-made and natural sources.

The Environment Agency’s Pollution Inventory and the Scottish Pollutant Release Inventory are important sources of information on industrial emissions, and these data are incorporated into the NAEI whenever possible.

Operators’ Duties

Duties of operators relate to reporting environmental data to public authorities, where the public can access relevant information, if that information is publicly available.

Operators need to report certain type of pollution emissions to the regulators if they take part in a process regulated by the Environment Agency, Natural Resources Wales (NRW), SEPA or local authorities. This includes sites which:

  • are regulated under integrated pollution prevention and control
  • are regulated under local authority pollution prevention and control
  • are subject to the Radioactive Substances Act 1993
  • are subject to waste management licenses under PPC
  • are sewage treatment works subject to a ministerial direction under the Water Industries Act.

It is a legal requirement for operators to supply data under these legislative regimes. Operators must measure or make an estimate of the amount of emissions of each controlled substance every year. They must also specify “notifiable” releases in a year. These are where there has been an emergency, mismanagement, accident or plant failure which has caused pollutants to be released. Where the emissions exceed or fall below a set threshold for a substance, the operator must report this.

Under EMS it is common to maintain a register of legal requirements, which may include:

  • details of permits and consents and their conditions
  • service of notices
  • prosecutions
  • monitoring data
  • appeals
  • applications.

An organisation must consider carefully any information which may be required to be released to an enforcement authority, eg the Environment Agency or local authority.

Discovery and Privilege

Where an organisation is defending a civil action the court may order the organisation to disclose all documentation relevant to the dispute for inspection by the plaintiff. This is known as “discovery”. Discovery can often determine the success or failure of a party’s case. Solicitors are under a duty to the court to disclose all relevant documentation even if it does not support the case of the party disclosing it. Documents, registers and records that form part of an EMS may be ordered to be disclosed, provided they are relevant to the issues in the litigation.

In civil proceedings both the plaintiff and respondent are required to disclose to one another all documents relevant to the issues in dispute. However, this obligation is subject to the right to prevent disclosure of certain documents, known as “privilege”. In criminal cases there is a limited form of privilege. There are a number of other methods that an organisation can employ to restrict the disclosure of sensitive information. These include:

  • restricting the number of people who have access to, or hold, the information
  • using commercial confidentiality exceptions under the EPA 90 and the Water Resources Act 1991 to restrict the publication of information in registers
  • using specific terms in a contract to prevent a third party from divulging information, eg a term in a contract may prevent an auditor from divulging information that is gained during an investigation
  • using copyright controls to prevent unauthorised copying, adaptation or issuing of any sensitive information.

The Government has recently announced it will legislate for mandatory implementation of climate risk disclosures by large companies and financial institutions across the economy by 2025.

List of Relevant Legislation

  • Companies Act 2006
  • Freedom of Information (Scotland) Act 2002
  • Freedom of Information Act 2000
  • Environmental Information Regulations 2004
  • Environmental Information (Scotland) Regulations 2004
  • Directive 2014/52/EU concerning the assessment of the effects of certain public and private projects on the environment
  • Directive 2008/1/EC concerning integrated pollution prevention and control
  • Directive 2003/04/EC on public access to environmental information
  • Directive 2003/35/EC providing for public participation
  • Directive 2007/2/EC concerning Infrastructure for Spatial Information in the European Community (INSPIRE)
  • Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters
  • UNECE Convention on Long-Range Transboundary Air Pollution
  • UNECE Protocol on Pollutant Release and Transfer Register

Further Information

Publications

Defra Publications

The following are available at Defra.

  • Code of Practice on the Discharge of the Obligations of Public Authorities Under the Environmental Information Regulations 2004 (2005)
  • Guidance to the Environmental Information Regulations 2004 (2005)

Other Publications

  • A Short Guide to the Freedom of Information Act and Other New Access Rights (2005), Campaign for Freedom of Information

Organisations

  • Campaign for Freedom of Information
  • http://www.cfoi.org.uk
  • Campaign for Freedom of Information is a non-profit organisation working to improve public access to official information and ensure that the Freedom of Information Act is implemented effectively.
  • Department for Environment, Food & Rural Affairs (Defra)
  • https://www.gov.uk/government/organisations/department-for-environment-food-r…
  • Defra is the government department that deals with waste, water and other environmental issues. It consults on new regulations and provides guidance on legislation and best practice.
  • Department for Business, Energy & Industrial Strategy (BEIS)
  • https://www.gov.uk/government/organisations/department-for-business-energy-an…
  • BEIS is responsible for business, industrial strategy, science and research, energy and climate change.
  • Environment Agency
  • http://www.gov.uk/government/organisations/environment-agency
  • The Environment Agency is the national environmental regulator in England, with specific responsibility for waste regulation.
  • Information Commissioner’s Office
  • https://ico.org.uk
  • The Information Commissioner’s Office is the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. It handles compliance with email marketing legislation known as “PECR”, the General Data Protection Regulation and the Data Protection Act 2018.
  • National Environmental Technology Centre
  • http://www.naei.org.uk
  • NETCEN compiles and updates the National Atmospheric Emissions Inventory on behalf of Defra.
  • Scottish Environment Protection Agency (SEPA)
  • http://www.sepa.org.uk
  • SEPA manages environmental regulations and related issues for Scotland.