EIR Specific Requests: Using the Environmental Information Regulations 2004

What are the Environmental Information Regulations 2004?

The Environmental Information Regulations 2004 (SI 2004/3391) implement the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, via EU Directive 2003/4/EC on public access to environmental information. That Directive was retained in UK law after Brexit. Scotland has its own equivalent: the Environmental Information (Scotland) Regulations 2004.

EIR operates as a parallel regime to the Freedom of Information Act 2000. When a request concerns environmental information, EIR applies instead of FOIA — and it provides a materially stronger set of access rights in three key respects: a broader definition of “public authority” that reaches private bodies with public functions; a mandatory public interest test attached to every exception; and no absolute bar on disclosure equivalent to FOIA’s absolute exemptions (personal data under reg.13 is the main exception, deferring to data protection law).

The duty to advise and assist requesters (reg.9) and the proactive dissemination duty (reg.4 — requiring authorities to progressively make environmental information available to the public) are also stronger in practice than their FOIA equivalents. Public authorities subject to EIR must organise and make available environmental information in forms accessible to the public, not merely wait to be asked.

What counts as environmental information?

Regulation 2(1) defines environmental information across six categories. The definition is deliberately broad and has been interpreted generously by the ICO and tribunals.

• 1State of elements of the environment: Air, atmosphere, water, soil, land, landscape, natural sites, biological diversity (including genetically modified organisms), and the interaction between these elements.
• 2Factors affecting those elements: Energy, noise, radiation, waste, emissions, discharges, and other releases into the environment affecting or likely to affect any of the elements above.
• 3Measures and activities: Policies, legislation, plans, programmes, environmental agreements, and administrative measures — including any that affect or are likely to affect the elements or factors, and any cost-benefit or other economic analyses used in connection with them.
• 4Reports on environmental legislation: Reports on implementation of environmental law, including audit trails, compliance reports, monitoring data, and internal enforcement decisions.
• 5Cost-benefit and economic analyses: Economic analyses, assumptions, and valuations used in decisions about measures or activities affecting the environment — including infrastructure appraisals and planning impact assessments.
• 6Human health and safety: The state of human health and safety to the extent it is or may be affected by the state of the elements — including contamination of the food chain, conditions of human life, cultural sites, and built structures inasmuch as they are affected by environmental elements.

In practice this means that internal briefings, consultants' reports, modelling data, planning impact assessments, flood-risk analyses, air quality monitoring records, and cost-benefit studies on infrastructure projects can all qualify as environmental information — even if the document was not produced specifically for environmental purposes.

Key differences from FOIA

EIR exceptions: regulation 12

EIR reg.12 lists the grounds on which an authority may refuse a request. Unlike FOIA exemptions, every reg.12 exception is subject to a mandatory public interest test — the authority must disclose unless the public interest in maintaining the exception outweighs the public interest in disclosure. Regulation 12(2) also establishes a presumption in favour of disclosure: where the authority is in doubt, it must disclose.

The exceptions in reg.12(4) cover procedural grounds: the authority does not hold the information (reg.12(4)(a)); the request is manifestly unreasonable (reg.12(4)(b)); the request is too general (reg.12(4)(c)); the request relates to material in the course of completion, unfinished documents, or incomplete data (reg.12(4)(d)); and the request relates to internal communications (reg.12(4)(e)).

The exceptions in reg.12(5) cover substantive grounds: international relations, defence, national security, or public safety (reg.12(5)(a)); the course of justice, a person's ability to receive a fair trial, or a public authority's ability to conduct an inquiry of a criminal or disciplinary nature (reg.12(5)(b)); intellectual property rights (reg.12(5)(c)); the confidentiality of proceedings of a public authority, where such confidentiality is provided by law (reg.12(5)(d) — the closest EIR has to an absolute exception); the confidentiality of commercial or industrial information (reg.12(5)(e)); the interests of the person who provided the information voluntarily (reg.12(5)(f)); and the protection of the environment to which the information relates (reg.12(5)(g)).

Crucially, reg.12(9) — the “emissions presumption” — provides that, to the extent information relates to emissions into the environment, it cannot be withheld under reg.12(5)(d), (e), or (f). If you are requesting data about actual discharges into air, water, or land, commercial confidentiality, intellectual property, and the voluntarily-supplied information exception are all unavailable to the authority.

How to make an EIR request

EIR requests can be made in writing or verbally — unlike FOIA, there is no requirement that the request be in writing, though writing is strongly advisable to create a clear record. You do not need to cite the EIR 2004; the authority must determine the correct regime. The 20-working-day clock starts when the authority receives the request (reg.5(2)).

• 1State clearly what environmental information you are requesting — be specific about the time period, subject matter, and format you prefer.
• 2You do not need to explain why you want the information — authorities cannot require a reason as a condition of compliance.
• 3If requesting from a private body (e.g. a water company), make clear you are requesting under the EIR 2004 and that the body carries out functions of public administration.
• 4The authority must advise and assist you (reg.9) — if your request is too broad, ask them to help you narrow it rather than accepting a manifestly-unreasonable refusal.
• 5Under reg.4, authorities should already be making environmental information proactively available — check their publication scheme before making a request.
• 6If refused, request an internal review under reg.11 within 40 working days of receiving the refusal — then escalate to the ICO if the review is unsatisfactory.

When to use EIR instead of FOIA

The following story types are typically better pursued under EIR than FOIA — either because the target body is only reachable via EIR, or because EIR's stronger public interest test gives you a better chance of disclosure.

• ›Planning decisions: internal reports, environmental impact assessments, and cost-benefit analyses produced for major infrastructure projects (HS2, airport expansion, road schemes) are environmental information.
• ›Water pollution data: discharge consents, breach records, and water quality monitoring from privatised water companies — reachable under EIR but not FOIA.
• ›Fracking and oil exploration: geological surveys, environmental risk assessments, and correspondence with regulators held by private operators carrying out licensed public functions.
• ›Air quality monitoring: local authority air quality action plans, breach reports, and modelling data underpinning Clean Air Zones.
• ›Flood risk and climate modelling: Environment Agency and local authority flood-risk data, tidal modelling, and climate adaptation plans.
• ›Environmental enforcement: internal enforcement decisions, notices, and correspondence about pollution incidents — authorities sometimes refuse these under commercial confidentiality, but reg.12(9) may bar that exception.
• ›Airport expansion: noise impact assessments, carbon modelling, and surface access plans held by the planning inspectorate or local authorities.
• ›Pesticide and contamination: pesticide application records near schools or residential areas (reg.2(1)(f) — human health and safety).

Checklist: deciding FOIA vs EIR for your request

• Does my request concern the state of air, water, soil, land, or biological diversity? If yes, EIR almost certainly applies.
• Does my request concern factors affecting the environment — noise, emissions, radiation, waste, energy, discharges? If yes, EIR applies.
• Does my request concern measures, plans, or policies affecting the environment — including planning decisions, environmental agreements, or climate strategies? If yes, EIR applies.
• Does my request concern cost-benefit analyses or economic assessments used in environmental decisions? If yes, EIR applies.
• Does my request concern human health or safety to the extent it is affected by environmental factors? If yes, EIR applies.
• Is the body I am requesting from a private company (e.g. a water company, energy network operator, or private contractor managing public land)? If yes, check whether it carries out functions of public administration — if so, EIR reaches it even though FOIA does not.
• Am I asking about actual emissions or discharges into air, water, or land? If yes, note reg.12(9) — commercial confidentiality, IP rights, and voluntarily-supplied information exceptions cannot be used to withhold this data.
• If I am still unsure, leave the regime open in my request — do not restrict it to FOIA. Let the authority determine which regime applies and tell me.

Frequently asked questions