Letter from the Rt Hon John Gummer, MP, Secretary of
State for the Environment, to Baroness Hilton of Eggandon, QPM,
Chairman of Sub-Committee C
Thank you for your letter of 4 December[1] and
the attached copy of your Sub-Committee's Report on Freedom of
Access to Information on the Environment.
I would like to thank both you and your Committee most warmly
for a thorough and timely report. It has been of considerable
help to the Government in reviewing the workings of our own Environmental
Information Regulations and in reporting to the European Commission
on the implementation of the EC Directive.
The Government's formal Response to your Report is attached.
I am making it publicly available today through a Parliamentary
Question and a Departmental Press Notice. As you will see, I am
happy to accept most of your recommendations although the majority
of these involve revisions to the Directive rather than to our
own Regulations. Although I accept that certain revisions to
the Regulations and Guidance are desirable, I am less clear as
to when these might best be made. There are external factors to
consider.
As you know, the Commission is reviewing the Directive and
changes are possible. We will need to respond to these. However,
there is a further complication. Negotiations are proceeding on
a UN/ECE Convention on Access to Environmental Information etc.
Hopefully this will be ready for signing at the Ministerial Conference
in Denmark in 1998.
The final agreed text will probably necessitate further changes
both to the Directive and the Regulations. It would take months
to prepare and consult on changes to the UK Regulations and such
revisions would not be in place much before the new version has
to be laid to comply with the EC and UNECE. I am reluctant to
make repeated short-term changes to the Regulations and Guidance
- changes for that would be confusing and unsettling to the public
- but I would rather wait until the Convention text is in place
and it has been determined how the Directive is to be reviewed.
That does not mean, though, that we should do nothing now.
As you indicate in your Report, the Regulations, and the Open
Government Code of Practice, are providing the public with improved
access to environmental information. I would like this improvement
to continue. I believe that it will, even if I delay implementing
many of your recommendations.
You make five substantive recommendations concerning the
Regulations. I am not convinced that the compilation of a non-exclusive
list of relevant persons is feasible, nor that the prescription
of practical arrangements is necessary. I consider that changes
to the Regulations which harmonise access rights with those in
the Code, and other changes to improve the operation of exemptions,
should be considered further.
I do accept though, that access would be significantly extended
if there were to be a more satisfactory machinery for appeals
and enforcement. I think that the presence of such machinery would
remove many of the criticisms which your enquiry unearthed. I
propose, therefore, to seek ways to establish an independent appeals
procedure as a matter of urgency and I will give serious consideration
to your preference for an Information Commissioner. I will also
ensure that the Guidance is revised to cover this change and to
improve clarity elsewhere.
I will keep your Sub-Committee informed of progress on these
actions and I will update you from time to time on developments
relating to your other recommendations.
4 February 1997
Memorandum from the Department of the Environment
BACKGROUND
1. The Select Committee carried out an enquiry during the
1995-96 Session into the European Council Directive 90/313/EEC
on the freedom of access to information on the environment ("the
Directive") which was adopted in June 1990, and the Environmental
Information Regulations 1992 ("the Regulations" - SI
1992 No. 3240) which apply to Great Britain and came into force
on 31 December 1992 (separate but similar Regulations for Northern
Ireland came into force in 1993). The Committee published the
Report of its enquiry in November 1996.[2];
2. The
Government thanks the Select Committee for its thorough and timely
Report which addresses an important issue in environmental policy.
The Committee's findings have helped the Government in preparing
its own report to the European Commission on the implementation
of the Directive (as required by Article 8 of the Directive)
and should help the Commission in proposing any revisions to the
Directive. The rest of this Memorandum is the UK Government's
formal Response to the Select Committee's Report. For ease of
reference, this text follows the order given in Parts 3 and 4
of the Report (paragraphs 44-84).
The definition of "information relating to the environment"
3. The Regulations adopt the definition of "information
relating to the environment" given in the Directive.[3]
The Select Committee suggests that the definition should be made
more comprehensive and explicit (paragraph 48) and recommends
that Article 2(a) of the Directive be revised to clarify the definition
(paragraph 83 (a)) and establish clearly that human health is
within the definition (paragraph 83 (c)).
4. The Government is not in a position to change the definition
of "environmental information" in the Directive but
agrees that the definition could be made more comprehensive and
explicit. This is likely to be achieved following the outcome
of current negotiations over a UN/ECE Convention on Access to
Environmental Information etc. These negotiations have addressed
the very issues raised by the Committee: the degree to which
"decisions, operational, financial and economic" information
should be included within a definition of environmental information,
and whether environmental information includes information likely
to affect human health. The finally-agreed definition of "environmental
information" in the Convention should, therefore, be more
comprehensive and explicit. Once the Convention is signed and
ratified, the new definition should feed through into a revised
definition "environmental information" in the Directive
and Regulations.
5. Meanwhile, the Government accepts and seeks to carry out
part of the Committee's recommendations. The Department of the
Environment's Guidance to the Regulations ("the Guidance")
interprets the current definition of "environmental information"
broadly in line with the Committee's recommendations. The Guidance
(paragraph 19) acknowledges that the definition makes no explicit
reference to human health but goes on to state:
"Nevertheless,
the environment clearly impacts on human health - directly or
through the food chain - and to this extent information affecting
the state of human health should be covered".
And the Guidance (paragraph 20) makes it clear that:
"Activities
and measures are interpreted to include administrative measures
and environmental management programmes (e.g., planning and transport
development)".
The Government accepts that this Guidance will need to be
revised as and when the definition of "environmental information"
is changed.
The definition of "relevant persons"
6. The Regulations follow closely the definitions of "public
authorities" and "bodies under their control"
given in the Directive.[4] The Directive was deliberately
drafted in wide terms as it was considered that this had certain
advantage over more detailed and restricted language. The Regulations
use similar words to ensure that the intentions of the Council,
and the rights arising from the Directive, are fully reflected
in national law. As a result, and for the reasons cited in the
Department of the Environment's written evidence to the Committee[5],
the Regulations do not include a list of "relevant persons"
and the Guidance states (paragraph 12) that it is for organisations
to take a view themselves as to whether they are "relevant
persons" and thus subject to the Regulations.
7. The Select Committee takes the view that this approach
is flawed (paragraph 50) and states that the UK Government is
unique in letting organisations decide for themselves whether
they are covered by the Regulations. The Government is surprised
by this assertion because its own study of foreign legislation
reveals that only Greece among EU Member State includes a list
of organisations deemed to be within the scope of the Directive.
The Committee recommends that the Department of the Environment
draw up, for inclusion in the Regulations, a non-exhaustive list
of "relevant persons" and clearer eligibility criteria
supported by fuller guidance (paragraph 52).
8. The Government would much prefer to have a definitive
list of organisations covered by the Regulations. But, as stated
in its evidence to the Committee, it felt unable to provide such
a list. The Government remains reluctant to provide a non-exhaustive
list for two main reasons. First, only those organisations which
indisputably fall within the eligibility criteria given in the
Directive could be included in such a list. Such a list would
serve no useful purpose since those organisations likely to be
on it already accept that they are covered by the Regulations.
Second, the Government believes that organisations excluded from
such a list would argue that their exclusion is an admission
that they are not obviously covered by the Regulations. They might
then decide to respond to requests for environmental information.
On balance, the Government believes that more organisations are
likely to provide access to environmental information in the absence
of such a list than would be the case if such a list existed.
9. The Select Committee questions the status of the privatised
utilities (paragraph 56) and recommends that the wording of Article
6 in the Directive should be reviewed so that it adequately addresses
the issue of privatisation and specifically clarifies the status
of privatised public utilities (paragraph 83(e)). The Government
would welcome clarification on this subject and agrees with the
Select Committee that it is unsatisfactory, in terms of environmental
protection, that two bodies with relevant functions in common
should be treated differently. As a matter of public policy,
the Department of the Environment regrets that the Water Service
Companies have taken the view that they are not legally subject
to the Regulations whereas their counterparts in Scotland and
Northern Ireland clearly are covered. The Select Committee cites
the Commission as a source of clarification on this subject but
it has to be said that the Commission has no power to offer authoritative
interpretation of Directives - this being the role of the European
Court of Justice.
10. The Select Committee acknowledges that part of the difficulty
in deciding whether an organisation is a "relevant person"
arises from the Directive's use of the terms "responsibilities
relating to the environment" and "public responsibilities
for the environment" (paragraph 53). It is not clear whether
these terms are intended to mean different things. The Guidance
attempts to impute a meaning to each (paragraph 11) but not to
the satisfaction of the Select Committee. The Government doubts
that it can do more without the wording in the Directive first
being made clearer. The Select Committee recommends that the Commission
clarify the terms "responsibilities relating to the environment"
and "public responsibilities for the environment" (paragraph
83(d)); the Government would welcome clarification. The Select
Committee expresses concern over the meaning of "control"
in Article 6 of the Directive (paragraph 55). The Government would
also welcome a more precise definition of the word "control".
The grounds for exempting information from disclosure
11. Articles 3(2) and 3(3) of the Directive list a number
of categories of information that may be withheld. The Regulations
divide these exemptions into two categories: those exemptions
that must be applied (ie where the holder must not release the
information) and those exemptions that may be applied (ie where
the holder has discretion over the release of information). The
Select Committee believes that these exemptions are couched in
unnecessarily wide terms and are open to abuse (paragraph 60).
The Select Committee recommends that the Department of the Environment
should revise the Guidance to the Regulations in order to guard
further against misuse of certain exemptions (paragraph 84(a)).
The Department of the Environment is willing to consider all
options open to it to discourage abuse, and will do so in the
light of discussions taking place in the UNECE and the European
Community.
12. The Select Committee recommends that the Directive
should contain provisions for a harm test and a public interest
override to all categories of exemption (paragraph 83(f)). The
Government agrees in principle to including such provisions in
the Directive and Regulations: they already exist in the Open
Government Code of Practice on Access to Government Information
("the Code"). However, the Government does not see the
absence of such provisions as a " . . . serious weakness
in the present arrangements" (paragraph 61) because "harm"
and "public interest" must figure in the minds of persons
choosing to withhold information under a discretionary exemption.
13. The Select Committee states that the exemption relating
to legal and other proceedings is potentially an extremely wide
provision (paragraph 62) and recommends that the Directive should
restrict it to documents specially prepared for the purposes
of proceedings (paragraph 83(g)). The Select Committee also takes
the view that the Regulations have been drawn unnecessarily widely
(paragraph 62). The Government believes that it is important
that any information that might be pertinent to legal proceedings
should be capable of being withheld and the wording in the exemption
is no wider than that adopted in the Code. Since the Government,
like the Committee, is not aware of any significant instances
of abuse relating to the exemption, it considers it sufficient
to keep the situation under review.
14. The Select Committee expresses concern about the possible
abuse of exemptions relating to confidential deliberations, internal
communications and incomplete information (paragraphs 63-65).
In its written evidence, the Department of the Environment stated
that " . . . it is dangerous to generalise on this issue:
every case must be dealt with on its merits. It will be a matter
of judgment as to whether a document constitutes a confidential
deliberation or an internal communication. Initially, only the
holder of the information is in a position to make such a judgment".
The Government stands by this statement. As far as "incomplete
information" is concerned, the Government agrees with the
Select Committee that a document should not be labelled as "draft"
solely to prevent the release of information contained in it.
But the Government does not accept that information in a true
draft document should be withheld only if harm would result from
its disclosure.
15. The Select Committee suggests the inclusion of a harm
test in the exemption dealing with commercially confidential
information (paragraph 66). This exemption is "discretionary"
in the Regulations so holders of commercially confidential information
need not withhold it. The Guidance (paragraph 55) advises that
commercially confidential information may be withheld "where
disclosure . . . would prejudice the commercial interests of
an individual or business". Public officials are not best
placed to judge whether the release of commercially confidential
information would cause actual "harm" to third parties
so they are more likely to release the information on "public
interest" grounds. There needs to be a delicate balance between
"harm" and "public interest" which is not
easily encapsulated in the wording of an exemption (foreign Freedom
of Information legislation have adopted a variety of approaches).
Nevertheless, the Government will consider (in the context of
UNECE and EC discussions) scope for changes in the wording of
this exemption.
16. The Select Committee recommends that authorities
should have discretion (subject to harm and public interest tests)
to release information which has been supplied voluntarily, where
the circumstances justify it (paragraph 67). The Government agrees
that there should be an element of discretion involved in the
release of volunteered information. The Code permits this in
cases where the information is not supplied in confidence whilst
the Regulations do not. There is a strong case for harmonising
the two reÂgimes. The Government is content to see the
environmental information contained in freely volunteered advice
given by statutory bodies placed in the public domain. The Government
will make these changes in due course.
Practical arrangements
17. Article 3(1) of the Directive requires Member States
to define the practical arrangements under which environmental
information is made available. The Government chose to implement
this requirement by imposing a duty on a "relevant person"
who holds environmental information to make arrangements for giving
effect to the primary duty to make information available, to
ensure that every request is responded to as soon as possible,
that no such request is responded to more than two months after
it is received, and that, where the response to such a request
contains a refusal to make information available, the refusal
is in writing and specifies the reasons for the refusal. The
Select Committee argues for a more prescriptive approach (paragraph
68) and recommends that the Department of the Environment review
present arrangements with a view to laying down minimum standards
in the Regulations (paragraph 84(c)). In its written evidence,
the Department of the Environment stated that:
"over zealous prescription of detailed arrangements could
have the effect of inhibiting access if it imposed entirely unsuitable
arrangements on particular bodies. A wide range of bodies are
caught by the Regulations - from individual persons to large
multi-site, multi-function organisations - and only the bodies
concerned know how best to make information available. If the
Regulations were to impose uniform practical arrangements which
might be inconsistent with local practices, such arrangements
might inhibit freedom of access to and dissemination of information
contrary to the object of the Directive as set out in Article
1".
The Government stands by this statement and is not persuaded
of the need for change.
18. The Select Committee believes that the phrase "in
an accessible form" in the Regulations introduces an element
of subjectivity not present in the Directive (paragraph 69). The
Government is surprised that it is seen this way - it was not
intended to introduce an element of subjectivity when drafting
the Regulations. Rather, it was an attempt to encapsulate the
terminology "available information in written, visual, aural,
or data-base form" found in the Directive. "Accessible"
means that the information is "capable of being reached"
(Oxford English Dictionary); information is capable of being
reached if it is available and in any form, including written,
visual, aural, or data-base form. The Select Committee considers
that there should be a common access reÂgime for all environmental
information (paragraph 69) and recommends that the review of the
Directive should clarify whether access to information includes
the right of access to documents (paragraph 83(h)). The Regulations
and the recently issued second edition of the Code make it clear
that there is no UK commitment to make documents as opposed to
information available in response to requests for information.
Charging arrangements
19. Article 5 of the Directive allows a charge to be made
for supplying information; Regulation 3(4) reflects this[6].
The Select Committee accepts the principle of charging and supports
the Government's opposition to standardised charging regimes
(paragraph 74). The Select Committee is less clear how requests
for information which has commercial value should be dealt with
(paragraph 75). The Government agrees with the Select Committee
that holders of commercial information should be "free to
charge commercial rates" but does not agree that this right
should lapse if "it can be shown that [the information] has
no exploitable value in the hands of the person seeking it".
The Tradeable Information Initiative is a relevant consideration.
The Government accepts that charging is a contentious issue and,
in some cases, the legal basis is unclear. Therefore, the Government
supports the Select Committee's recommendation that Article 5
of the Directive should be revised in a way that would permit
Member States to prescribe flexible charging arrangements for
bodies whose activities are essentially commercial in nature
(paragraph 83(i)).
Appeals and enforcement
20. There will be occasional disputes over access to environmental
information. The Guidance (paragraph 72) urges any aggrieved
applicant to try and resolve any dispute with the body concerned
using administrative procedures. If administrative procedures
fail to resolve the dispute, the applicant may apply for judicial
review or, in an appropriate case, take out a private action
for breach of statutory duty in the courts. Nobody welcomes court
action but it does provide a fair means of resolving difficult
disputes. But appeals can be slow and expensive and for these
reasons the Government has signalled its intention of providing
an independent appeals procedure such as a Tribunal[7].
21. The Select Committee expresses the need for a more satisfactory
machinery for appeals and enforcement and a strong preference
for an Information Commissioner (paragraph 77); it recommends
that legislation should be brought forward at the earliest opportunity
(paragraph 894(d)). The Government remains committed to establishing
an independent appeals procedure and will give serious consideration
to the Information Commissioner model. The Government believes
that it can legislate under the European Communities Act to establish
an independent appeal body and will pursue this matter urgently.
Harmonisation and role of the Department of the Environment
22. The Select Committee argues against harmonisation between
the Regulations and other public access regimes (paragraph 78)
but does recommend that the Regulations be amended to provide
at least as good a level of access and disclosure as applies
under the Environmental Protection Act 1990 (paragraph 84(e)).
The Government will consider this but there are difficulties
in attempting to apply the statutory regime of the 1990 Act to
environmental information acquired under other quite different
statutory regimes, particularly retrospectively. The handling
of commercially confidential information is particularly problematic
in this respect. The Select Committee considers that the Department
of the Environment should play a more active part in monitoring
and ensuring compliance with the Regulations (paragraph 79). This
has resource implications. It would also depend upon the degree
of responsibility given to an appeals body. The Department of
the Environment will give these matters serious consideration.
Environment Protection Strategy & Europe Division
Department of the Environment
22 January 1997
1 Published in Correspondence with Ministers, 5th Report, Session 1996-97, p. 52. Back
2 HL Paper 9, London: HMSO, 1996, ISBN 0-10-40097-7. Back
3 Article 2(a) of the Directive is transposed in the following ways. Regulation 2(2)(a) defines environmental information as information relating to: "(a) the state of any water or air, the state of any flora or fauna, the state of any soil or the state of any natural site or other land; (b) any activities or measures (including activities giving rise to noise or any other nuisance) which adversely affect anything mentioned in sub-paragraph (a) above or are likely adversely to affect anything so mentioned: (c) any activities or administrative or other measures (including any environmental management programmes) which are designed to protect anything so mentioned". Regulation 2(4) defines information to "include anything contained in any records" where "records" are further defined to include "registers, reports and returns, as well as computer records and other records kept otherwise than in a document". Back
4
The obligation to make information available in Regulation 3(1) is imposed on "a relevant person". Regulation 2(3) states: "For the purposes of these Regulations the following are relevant persons, that is to say - (a) all such Ministers of the Crown, Government Departments, local authorities and other persons carrying out functions of public administration at a national, regional or local level as, for the purposes of or in connection with their functions, have responsibilities in relation to the environment; and (b) any body with public responsibilities for the environment which does not fall within sub-paragraph (a) above but is under the control of persons falling within that sub-paragraph". Thus all bodies which fall within Article 2(b) ("public authorities") and Article 6 ("bodies with public responsibilities for the environment and under the control of public authorities") of the Directive are "relevant persons" for the purposes of the Regulations. Back
5 The evidence stated ". . . that any list would create difficulties which could cause confusion rather than clarify the rights of individuals. First, the UK Government might find that it had taken a view, in good faith, on whether a body fell within the scope of the Directive, only later to find that the Courts took a different view. Second, very many bodies are capable of falling within the scope of the Directive, especially bodies under the control of local authorities, and it is not practicable for national legislative authorities to examine the status and purpose of each such body in order to compile a comprehensive list. Third, a body within the scope of the Directive might be created after the transposing legislation was adopted and thus be excluded from the list; alternatively, a body falling initially within the scope of the Directive might move outside the scope as its status changed. Fourth, the inclusion of a non-exhaustive list would raise additional uncertainty and controversy about whether non-listed bodies fell within the scope of the Regulations". Back
6 It states: "[the practical arrangements] may - (a) include provision for the imposition of a charge on any person in respect of the costs reasonably attributable to the supply of information; and (b) make the supply of any information conditional on the payment of such a charge". . Back
7 Paragraph 6.16 in Open Government. Cm 2290, London: HMSO, 1993, ISBN 0-10-122902-X Back
