Supplier-provided environmental information may be subject to disclosure by public authorities, says ICO

The watchdog has issued guidance to public bodies that are subject to the Environmental Information Regulations (EIRs). The ICO's guide outlines how those authorities can determine whether to disclose environmental information they have been voluntarily provided with, (19-page / 325KB PDF) even if suppliers have not consented to that disclosure.

Under the EIRs a public body is generally required to disclose "environmental information" it "holds" as soon as possible and within 20 working days of when information is requested. The EIRs are similar to the UK's freedom of information laws in that they give the public the right to access certain information held by public bodies. However the EIRs contain specific rules relating to the disclosure of 'environmental information'.

'Environmental information' relates to "written, visual, aural, electronic or any other material form" of information about environmental elements such as air, water and landscape. It also includes information detailing factors such as energy, emissions and noise as well as legislative measures and reports that affect those elements or factors, amongst other things.

Under the EIR framework public bodies can refuse to disclose environmental information if a particular exemption listed in the Regulations is invoked. If a requester seeks disclosure of environmental information that was voluntarily supplied by a third party, public authorities can refuse to disclose that information provided a number of conditions are met.

If the supplier was under no legal duty to provide the information, has not consented to its disclosure, would be "adversely affected" by disclosure of the information they provided and the public interest in disclosure is outweighed by the public interest in withholding the information then public authorities can refuse requests for that information.

If the public interest favours disclosure and the public body is otherwise entitled to disclose the information, then it must do so. Public bodies cannot invoke the exemption to refuse to disclose voluntarily provided environmental information if that information relates to emissions.

"Generally where the disclosure of information would harm the interests of the person that provided it and the other requirements within the exception are met, a public authority will owe that person a duty of confidence. The public interest test will then determine whether or not the information should be disclosed," the ICO said in new guidance.

The ICO said that public bodies cannot invoke the exemption unless suppliers would be adversely affected by disclosure of the information they provided. The watchdog said there may be cases where part of the information sought by a requester would give rise to adverse affects to suppliers and that in those circumstances the remainder of the information would generally be required to be disclosed. It said that public bodies should, in the majority of cases, consult with suppliers to ascertain what adverse affects they believe there would be from disclosure.

"The public authority must be able to explain the causal link between disclosure and the adverse effect, as well as why it would occur," the ICO said in its guidance. "The need to point to specific harm and to explain why it is more probable than not that it would occur reflects the fact that this is a higher test than ‘might adversely affect’, which is why it requires a greater degree of certainty. It also means that it is not sufficient for a public authority to speculate on possible harm to a third party’s interests."

When conducting the 'public interest test' when considering whether to apply the exemption, public bodies must be able to "demonstrate" the link between adverse affects arising to suppliers and the public interest in refusing to disclose information if that is the outcome they reach, the ICO said.

The watchdog also released new guidance on when environmental information could be considered to be 'held' (10-page / 280KB PDF) by public sector bodies. It said that if such information is held in a "private capacity" by staff, even if stored on the organisations' computer systems, the authorities should not consider the material to be subject to disclosure. Only if the information is held by a public authority "to any extent for its own purposes" could it be considered to subject to the EIR regime, the ICO said.

"It is unlikely that information is held to any extent for the purposes of the public authority where: the authority has no access to, use for, or interest in the information; the authority does not, at its own discretion, create, record, file or remove the information; or the authority merely provides physical or electronic storage facilities," the ICO said in its guide. "These factors are not definitive and they only offer assistance to a public authority in determining whether information is held."