The Environmental Information Regulations 2004

Exceptions to the duty to disclose environmental information

This sectionnoteType=Explanatory Memorandum has no associated

12.  (1)  Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

(a)an exception to disclosure applies under paragraphs (4) or (5); and

(b)in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

(2) A public authority shall apply a presumption in favour of disclosure.

(3) To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13.

(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—

(a)it does not hold that information when an applicant’s request is received;

(b)the request for information is manifestly unreasonable;

(c)the request for information is formulated in too general a manner and the public authority has complied with regulation 9;

(d)the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or

(e)the request involves the disclosure of internal communications.

(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—

(a)international relations, defence, national security or public safety;

(b)the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;

(c)intellectual property rights;

(d)the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;

(e)the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;

(f)the interests of the person who provided the information where that person—

(i)was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;

(ii)did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and

(iii)has not consented to its disclosure; or

(g)the protection of the environment to which the information relates.

(6) For the purposes of paragraph (1), a public authority may respond to a request by neither confirming nor denying whether such information exists and is held by the public authority, whether or not it holds such information, if that confirmation or denial would involve the disclosure of information which would adversely affect any of the interests referred to in paragraph (5)(a) and would not be in the public interest under paragraph (1)(b).

(7) For the purposes of a response under paragraph (6), whether information exists and is held by the public authority is itself the disclosure of information.

(8) For the purposes of paragraph (4)(e), internal communications includes communications between government departments.

(9) To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in paragraphs (5)(d) to (g).

(10) For the purposes of paragraphs (5)(b), (d) and (f), references to a public authority shall include references to a Scottish public authority.

(11) Nothing in these Regulations shall authorise a refusal to make available any environmental information contained in or otherwise held with other information which is withheld by virtue of these Regulations unless it is not reasonably capable of being separated from the other information for the purpose of making available that information.