You've all heard of the Freedom of Information Act, but what developers really need to worry about is the Environmental Information Regulations. Here's why...

This month marks the first anniversary of the the Environmental Information Regulations. They run in parallel with the Freedom of Information Act but have attracted nothing like the same publicity and have yet to be tested in the courts.

Both acts aim to increase public access to information, but the scope of the EIR is wider, so it could prove more effective in obtaining some types of data, for example, on planning applications. And this could have significant implications for developers.

Under the EIR, "public authorities" must make available relevant "environmental information" they hold upon receipt of a request from a member of the public, which could be a competing developer. The definition of "environmental information" includes anything relating to:

  • the "state of the elements of the environment" such as air, water, soil and land
  • plans and agreements
  • cost-benefit and other economic analyses.
When it comes to construction projects, data that might be successfully requested under the EIR include: financial valuation data submitted to planning authorities to justify enabling development:

  • official recommendations to the secretary of state to allow call-in decisions to be taken
  • information on the contractual obligations of subcontractors involved in PFI projects for the provision of energy services.
The regulations apply to central government, local authorities, regulatory agencies and other bodies carrying out public services. According to DEFRA's guidance on the rules, "other bodies" could include companies involved in PFI projects.

The EIR establish a strong presumption in favour of environmental information being released. There are no absolute exceptions and public authorities can only refuse a request where the public interest in withholding the information would outweigh that of disclosure. The limited exceptions are for requests that are:

  • "manifestly unreasonable"
  • would adversely affect intellectual property rights
  • would prejudice judicial proceedings
  • for information supplied voluntarily by third parties, and those parties have not consented to disclosure.
However, the public authority must separate out and release the non-excepted information.

There is also no requirement that the public authority inform someone who supplies information that a request has been made, or to ensure the accuracy of the information released.

A request does not have to be in writing and the public authority has a duty to respond even if the process is likely to be time-consuming. However, the normal time limit of 20 working days can be extended by a further 20.

The public authority has to justify any refusal to release information. If there is a dispute, a complaint can be made to the information commissioner, then the information tribunal and (on a point of law) to the High Court.

Since the regulations came into effect a year ago, non-governmental organisations have been testing their effect by demanding information relating to large companies and the companies have in turn resisted those demands. The scope of the new regime is still being clarified in practice.

A recent report by the National Council of Voluntary Organisations indicated that NGOs and other groups were making extensive use of the Freedom of Information Act. However, the study did not deal in any detail with the impact of the EIR, despite mentioning the interest from "green" NGOs. The information commissioner's website provides little guidance on the regulations and has no details of any decisions taken under the regime, though this is expected to change soon.

As knowledge of the regulations increases, it is likely that more effective use will be made of them, in particular in relation to PFI and land-use planning projects. It is best to assume that some potentially sensitive information may end up being released. Businesses should therefore monitor and control the release of sensitive information into the public domain, including any representations made to public bodies and advice given to public-sector clients.