1. Freedom of Information Environmental Information Regulations
Summer 2015 1 1

2. What today will cover FOI and EIR Obligations under the legislation
“Normal Business”
What information can and cannot be withheld
Interaction with Data Protection Act 1998 2 2

3. Freedom of Information Act 2000
Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him
S39, however, exempts “Environmental Information” – must be responded to under Environmental Information Regulations 2004
FOI or EIR do not have to be mentioned
Request can arrive anywhere – , letter, even social media
Why the difference? Well, the EIR fulfil an EU Directive – UK Govt decided to include that in Regs under the FOI Act 3 3

4. Planning Information is Environmental Information
Regulation 2 (c) of EIR
Decision made by Information Tribunal in Peter Graham Robinson v Information Tribunal
All planning appeals to ICO and Tribunal have been decided under EIR
Key fact is – Planning is Environmental Information
Information must be written down – doesn’t cover questions like “Why” or “Please explain” – the ICO will back the Public Authority in cases like this 4 4

5. Regulation 2(c)
measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements
air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components
Key fact is – Planning is Environmental Information
Information must be written down – doesn’t cover questions like “Why” or “Please explain” – the ICO will back the Public Authority in cases like this 5 5

6. What’s different about the EIR?
A valid request does not need to be written
The time-limit is “as soon as possible” but no later than 20 working days
No charge can be made for viewing information – Reg 8(2)
Information must be progressively provided electronically – Reg 4
Still must confirm whether information is held and information must exist
No charge made for viewing – open file policy could not be charged for
Planning portal takes care of the progressively provided bit 6 6

7. “Normal Business”
Administrative construct – does not affect individual’s rights under legislation
Should only be used where there is no question of information being withheld e.g. Published information
Includes responses where information must be created to answer
An obvious planning example is anything on the Planning Portal or on a public register
Or information which is routinely released without any formal publication
So unless the question “Why did you not take my objection into account” can be answered from information recorded on the file... 7 7

8. Practical Issues
Is the request clear? Clarification – resets the clock – only used where the information requested cannot be identified
Obliged to provide advice and assistance to requestor
Re-read and re-read request until SICK of it – then read it again
Reading the request is the most important part
Often we’re familiar with the requestor and know what we think they want
Only answer the question asked – only if the request is unclear can we ask for clarification and provide advice

9. Example of Clarification
“Provide all Planning Application reference numbers for the extraction of mineral resources from the shores and waters of Lough Neagh”
The problem here is how to define the shores and waters of Lough Neagh – The clarification asked for a definite boundary or buffer distance around the Lough

10. Practical Issues 2
Identify ALL information subject to request across the entire Public Authority
Ensure an accurate record of what has been disclosed and withheld is maintained – essential for appeals
Ensure any redactions adequately protect information
Remember the request is to the Authority as a whole - not just the Planning Department
Easiest way is to copy everything into the relevant filing system, including a record of what actually went out
A number of ways of redacting – a black marker needs a few goings over – the safest I’ve come across is to black out THEN print

11. Practical Issues 3
Consider who to consult – third parties, other public authorities
Consider who to alert – Senior Management, other areas of the authority
Always involve Press Office in media requests
Requestor blind - Disclosure = Publication
Companies may have an interest in information they have provided, this may swing a decision. Ultimate decision is ours though – more later. Security may need PSNI/DOJ consultation
Let Press Office know well in advance either way as the story could be a non-disclosure
Imagine every request will end up on the front page of the Telegraph

12. Exceptions from duty to disclose
Particular wording and emphasis under EIR
All subject to a public interest test, with a presumption in favour of disclosure
6 are used by Planning sections
The wording reflects the Directive rather than the FOI Act
The presumption is written into the Regulations
Take a look at the main 6 12 12

13. 12(4)(b) – Manifestly Unreasonable
Can be used if request is too “big”
Link to FOI costs – 18 hours of staff time to locating, retrieving, extracting
Can be used if request is vexatious
Potential to group multiple requests from individual together
Recent decision of Court of Appeal
Subject to Public Interest test
A very wide ranging exception
The type of “give me every planning application in the council area” request
Vexatious is an undefined word. Its something that the Department possibly hasn’t used enough, can include offensive requests, requests without any value or purpose, repeated requests, requests with no obvious “end point”, requests resulting from excessive disgruntlement with a decision
Dransfield v ICO; Crane v ICO; they talk about taking into account all the relevant circumstances
Document a decision to utilise and make sure its defendable 13 13

14. Dransfield v ICO; Crane v ICO
Court of Appeal decision
Equates Manifestly Unreasonable and Vexatious
Look objectively at all information available regarding the request
Should not be used to block important information that should be disclosed
Right of Appeal to ICO
Subject to Public Interest test
A very wide ranging exception
The type of “give me every planning application in the council area” request
Vexatious is an undefined word. Its something that the Department possibly hasn’t used enough, can include offensive requests, requests without any value or purpose, repeated requests, requests with no obvious “end point”, requests resulting from excessive disgruntlement with a decision
Dransfield v ICO; Crane v ICO; they talk about taking into account all the relevant circumstances
Document a decision to utilise and make sure its defendable 14 14

15. 12(4)(d) relates to material in the course of completion, unfinished documents or incomplete data
Does not mean that any document marked “draft” is exempt
However early draft versions of something that has been published can be exempt
May be applicable to policy statements, area plans, case officer’s reports, enforcement notice
Subject to public interest
Every word of an EIR exception counts – sometimes it works with out, sometimes against you
Relates to can be used for a document that affects a larger, more important document in the course of completion
Public interest factors can include whether there will be a final publication, whether the final pronouncement is timed to ensure fair access for all interested parties, where publication is timed by other statute – enforcement notice? 15 15

16. 12(4)(e) Internal Communications
Potentially covers all internal communications, including with external contractors working on our behalf e.g. Solicitors on enforcement
Aimed at protecting policy-making and internal discussions
Tribunal decisions show public interest favours disclosure following a decision being promulgated.
I said the wording was important, this one really is a catch-all, though care is still needed – works across Departments but not necessarily across all layers of government
The exception is resolved by a public interest test – a key precedent case in planning terms was a decision of the old Office of Deputy PM – large scale application 16 16

17. Planning for 12(4)(d) and 12(4)(e)
Case officer’s reports
Draft enforcement notices
Draft area plans
Associated Documentation
All while no decision promulgated and appeal period not exhausted
I said the wording was important, this one really is a catch-all, though care is still needed – works across Departments but not necessarily across all layers of government
The exception is resolved by a public interest test – a key precedent case in planning terms was a decision of the old Office of Deputy PM – large scale application 17 17

18. 12(5)(b) Adversely Affect course of justice, fair trial, or ability to conduct criminal inquiry
Includes legal advice
Also enforcement material where disclosure would adversely affect the process
Whole scope of judicial or quasi-judicial proceedings e.g. JR
“Adversely affect” means that if an action has been completed, unlikely that the exception can apply
Public Interest Test
Remember appeal periods and publication
Legal Advice can be included in Internal Communications as well – where you can use more than one exception it is best to do so
Course of justice is wide and can include the whole scope of judicial or quasi-judicial proceedings
Remember publication is the level to consider– what would a judge think 18 18

19. 12(5)(b) – Focus on enforcement
Anything prior to issuing on an enforcement notice can be considered
Notice is published – so lots of material held prior to publication can’t adversely affect the process
Investigation into breaches of notice can be considered
Remember appeal periods, publication and personal data 19 19

20. 12(5)(e) the confidentiality of commercial or industrial information
Adversely affect confidentiality
Information must be commercial
Confidentiality must be provided by law – though not necessarily statute
Law must protect a legitimate economic interest
Subject to a public interest test
Potentially Pre-Application enquiries
Can be used for pre-apps
Every leg of the stool must be used for the exception to stand up 20 20

21. 12(5)(f) – Adversely affecting interests of information provider
Adversely affect interests of person who provided information
The information must have been provided voluntarily – if the authority has the power to ask the exception is not engaged
The authority must not be obliged to disclose it - i.e. not public register information
The person must not have consented to disclosure
Subject to Public Interest
Potentially Pre-Apps, Whistleblowers
This is the likely exemption for pre-apps
You must consult with the person who provided the information to ensure you have evidence that their interests are adversely affected and that they have not consented 21 21

22. Staff CC v ICO and Sibelco
Commercial information provided to council voluntarily
Sibelco had asked for strictest confidence
12(5)(e) and (f) engaged
Tribunal discussion of public interest in a Human Rights context
The information was about minerals, the council were examining ways of discharging its statutory functions in terms of minerals and planning
Strong public interest in the maintenance of valuable commercial confidential information
Only First Tier Tribunal so guide rather than precedent

23. Interaction with Data Protection Act 1998
Regulation 13 exempts personal data from disclosure
Tribunal has agreed with withholding identities of enforcement complainants – Young v ICO
Fair processing – letting people know what will be done with their data e.g publication on Planning Portal
Interaction with Article 6 ECHR
Even with fair processing, why is there this level of transparency?
No Human Rights expert, but there has been extensive case law on the right to a fair trial with planning determinations
May wish to take further advice, but the basics as I understand them are that transparency is essential to the process, especially fact-checking at an early stage 23 23

24. Interaction with Data Protection Act 1998
The personal data is processed for planning functions ONLY – no authority to hold personal data beyond that
Special care with sensitive personal data
PARSOL is excellent guidance and is ICO approved, but based on English legislation
This is the justification for removing any personal information beyond what is necessary to make a planning determination on the basis of statute

25. Appeals Internal Review by Authority Information Commissioner Appeal
Tribunal - two tiers – Upper Tier on point of law only
Court of Appeal
Department can and has appealed to Tribunal

26. Finally.....
Paul McGrory 26 26