Line to take - LTT153 - The Commissioner’s approach to information relating to emissions

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  • FOI/EIR: EIR
  • Section/Regulation: reg 2(1)(b), reg 12(9)
  • Issue: The Commissioner’s approach to information relating to emissions
  • Source: Information Tribunal; Decision Notices
  • Details: FER0085500; FER0184376; Ofcom v ICO and T-Mobile
  • Related Lines to Take: LTT99
  • Related Documents: EU Directive; Aarhus Convention; Ofcom v ICO and T-Mobile; FER0085500, FER0184376
  • Contact: GF
  • Date: 15/05/2009
  • Policy Reference: LTT153
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

Emissions for the purposes of regulation 2(1)(b) and 12(9) should be given its “plain and natural meaning”.

In accordance with the EU Directive, the Commissioner acknowledges the emphasis placed on the release of information relating to emissions and will consequently interpret information relating to information on emissions for regulation 12(9) broadly to reflect this.

Requested information does not have to be specifically information on emissions for regulation 12(9) to apply, but extends to information that relates to information on emissions.


Further Information

The scope of the regulations in relation to emissions

While regulation 2(1)(b) provides that information on emissions is environmental information, regulation 12(9) is broader in scope and covers information relating to information on emissions (rather than just on). Furthermore, regulation 12(9) demonstrates a clear intention that there are limited circumstances where public authorities may refuse to disclose information relating to emissions:

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

Corresponding to this, the Commissioner acknowledges the emphasis placed on releasing information relating to emissions, which is consistent with the EU Directive.

The Commissioner’s interpretation of emissions

The Aarhus Convention Implementation Guide refers to Council Directive 96/61/EC on integrated pollution prevention and control (“the IPCC Directive”), which defines emissions as a “direct or indirect release of substances, vibrations, heat or noise from individuals or diffuse sources in the installation into air, water or land”.

This definition was considered by the IT in Ofcom v ICO and T-Mobile when contemplating what is covered by emissions. In this case, Counsel for T-Mobile accepted that radio frequency could be characterised as “energy” and “radiation” and also accepted that it was correct to say that they were “emitted” from a base station. However, he argued that “[radio frequency] did not constitute ‘emissions’ for the purposes of EIR because the circumstances in which the EIR came into existence require the word to be given particularly narrow meaning. Those circumstances were that the EIR implemented the Directive which included in its fifth recital, a statement that it was itself intended to be consistent with the [Aarhus Convention]. No definition of “emissions” appears in the EIR, the Directive or the Aarhus Convention”.

The Tribunal disputed Counsel’s narrow interpretation of emissions, which referred to the IPCC definition, which he had argued made it clear that the term emissions was intended to apply to polluting substances such as chemical elements released into the atmosphere from certain types of industrial plants (paragraph 24). The Tribunal noted that it is not a binding definition and that the Aarhus Convention itself does not cross reference it (paragraph 25). The Tribunal concluded that emissions, for the purposes of regulations 2(1)(b) and 12(9) “should be given its plain and natural meaning and not the artificially narrow one set out in the IPCC Directive”. In this context, the Tribunal accepted that radio wave radiation emanating from a base station is an emission (paragraph 25).

The Commissioner agrees with the Tribunal’s view; as discussed above, and in accordance with the Aarhus Convention, the Commissioner places vital importance on releasing information relating to emissions and correspondingly, will interpret emissions broadly, in contrast to T-Mobile’s Counsel’s narrow interpretation of emissions and reading of the IPCC definition.

With regard to the Tribunal’s comments, the Commissioner has given further consideration to the “plain and natural” meaning of emissions in case FER0184376, where he considered the dictionary definitions of “emission” and “emit”. Emission is defined as “something emitted” and the definition of emit includes “give off, send out from oneself or itself, (something imponderable, as light, sound, scent, flames, etc.)”.

In this case, the complainant had made a series of requests relating to a research report conducted on noise issues and wind farms. The public authority had claimed s12(5)(e) and (f) but the Commissioner argued that the information related to emissions, and that by virtue of 12(9), the exceptions at 12(5)(d) to (g) could not apply to the information. In response to this, the public authority argued that noise was given equal prominence to emissions in the definition of environmental information under 2(1)(b) and therefore has clearly separate status (paragraph 27). The Commissioner was not persuaded by this and believed that regulation 2(1)(b) should be read as saying that noise can be characterised as an emission.

The Commissioner believes that information can be characterised as being within more than one of the factors listed under regulation 2. In light of consideration of the dictionary definition of emissions and emit, the Commissioner was clear that the withheld information was information relating to the noise waves emanating from certain windfarms; with this in mind and considering this alongside the ‘plain and natural’ meaning of the word emission, the Commissioner believes that the withheld information related to information on emissions.

Case example on the application of 12(9)

Case FER0085500 provides an example of the scope of information relating to information on emissions that the Commissioner will consider for the purposes of applying regulation 12(9). In this case, the complainant had requested a report into an application for a grant towards a proposed biomass generation plant; the decision notice established that the plant had a key aim of reducing carbon emissions. The report contributed to the decision on whether or not to award a grant under Bioenergy Capital Grants Scheme and the Commissioner took the view that the Scheme is likely to affect the reduction of carbon emissions via production of energy from renewable sources and therefore a measure designed to protect all elements referred to in 2(1)(a) by reducing factors within 2(1)(b), namely emissions (paragraph 35).

The public authority withheld the requested information, citing the exceptions provided at regulations 12(5)(d) (confidentiality of proceedings of public authorities provided by law), (e) (commercial confidentiality) and (g) (environmental protection). However, as the Commissioner was clear that the information related to information on emissions, by virtue of regulation 12(9), these exceptions were not engaged. The Commissioner made clear his view that the inclusion of the phrase ‘relates to information’ in regulation 12(9) means that its application is not restricted to cases where information falls within the definition of environmental information only by virtue of regulation 2(1)(b).

This case demonstrates that where information falls into the environmental information definition via measures, you are likely to be looking more widely at whether the measure deals with emissions rather than the specific recorded information in the scope of the request.

Conclusion

The above discussion reflects that the Commissioner acknowledges the emphasis placed on the release of information relating to emissions and therefore, will interpret emissions broadly to emphasise this.