The Tribunal, in Black v Information Commissioner (EA/2011/0064), has considered the definition of environmental information in the Environmental Information Regulations 2004 (“the EIRs”). The heart of the definition is “information 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”. 

It is of course important that public bodies spot when requested information falls within this definition, because any such request must be considered under the EIRs instead of the Freedom of Information 2000 (“FOIA”). It is fairly common for the requester and the public body to assume that a request has been made under FOIA, but to realise subsequently that the information should have been considered under the EIRs. The definition of environmental information is broad and sometimes surprises people by capturing information which does not appear to be environmental. For example, Robin Hopkins recently discussed on this blog how the “landscape” element of the definition has been interpreted broadly so as to include a monument. The Tribunal’s decision in Black is relatively unusual in that the appellant argued that all of the requested information fell within the EIRs, but the Tribunal rejected this submission. 

The appellant sought information on internal fixtures, such as fireplaces and chimney pieces, in English Heritage properties.  He relied on the Advocate General’s opinion in the case of Stichting Natuur en Milieu (Case C-266/09) to argue that buildings and structures were part of the landscape, which was not limited to the natural environmental. The appellant also argued that the EIRs had failed to properly implement the Directive. The Tribunal found that the opinion in Stichting Natuur en Milieu did not support the appellant’s submission and concluded that “On a plain reading of both the Directive and the EIR (which are identical in any event) the Tribunal finds that information relating to the internal fixtures of a building does not constitute “environmental information” within the definition, whether as landscape or otherwise”.   

Rachel Kamm

Omagh DC v IC (EA/2010/0163) is the newest decision on the scope of “environmental information” under the EIR. It is notable both for the broad interpretation it gives to the “landscape” element of that definition, and for the relevance the Tribunal ascribed to the purpose of the request.

The case concerned a memorial on Council-owned land commemorating IRA members who died during the hunger strikes of 1981. The Council undertook an Equality Impact Assessment on its policy on “Disposal of Land for the Purpose of Erecting or Retaining a Memorial or Monument”. The requester sought the names, departments and job titles of those Council officials responsible for that Assessment, as well as the Council’s letter to the Equality Commission.

The issue for the Tribunal was whether this should have been dealt with under FOIA or the EIR. The Council argued that the applicant’s queries were not about the environment, but about a process being used to inform a consultation on a Council decision. The Commissioner contended that the requested information was “environmental information” within the meaning of reg. 2(1)(c) EIR because the assessment was a “measure which is likely to affect the land and landscape”, and that details of those officials responsible for drafting the policy were not so far removed from this “measure” as not to have an effect on it.

The Tribunal has agreed with the Commissioner. It accepted that the Assessment could be fairly described as an investigative step prior to a potentially controversial final decision affecting or protecting the landscape, and also that the scope for “visual as opposed to cultural impact is capable of being regarded as minor” in this case. Nonetheless, it observed that under reg. 2(1)(i), the test is not only whether a measure affects or is likely to affect one of the listed elements but also whether a measure is “designed to protect” those elements; therefore, whether a change is likely is not determinative. The title of the Assessment implied a possible outcome preserving the status quo. The Tribunal was clear that:

“Only the connection with an impact on land or landscape links the concerns in this case into environmental rights. Had the memorial in question been inside a public building, the landscape context would have been absent but the cultural concerns would not have been different”.

Interestingly, although it recognised the “motive blind” principle, the Tribunal took the view that motive could be relevant not to the decision on whether or not to disclose the information (with which the Tribunal was not concerned) but to determining whether or not information is “environmental”:

“… both context and the motive of the requester are potentially relevant considerations. If the requester appeared to be wholly unconscious of an environmental aspect or import to his request, and stressed other reasons for his interest in the information, he could not be said to be denied environmental access rights if his request is not considered under EIR… If the Complainant had shown no evidence of concern about landscape impact, or if the allocation of the issue to one framework rather than the other could have led to a material difference in treatment of the substantive issue, these would have been relevant factors to take into account”.

Robin Hopkins