Line to take - LTT99 - Past present & future emissions under 12(9)
- FOI/EIR: EIR
- Section/Regulation: reg 12(9)
- Issue: Past present & future emissions under 12(9)
- Source: Legislation, Decision Notices
- Details: European Directive 2003/4/EC; Aarhus Convention; East Riding of Yorkshire Council / [Redacted name]; Brighton & Hove friends of the Earth/ Brighton & Hove Council
- Related Lines to Take: LTT83
- Related Documents: EC/2003/4/EC, Aarhus Convention, FER0066052, FER0073984, Defra EIR Detailed Gudiance
- Contact: LA
- Date: 20/03/2008
- Policy Reference: LTT99
Line to take
Emissions referred to at 12(9) are not limited to emissions that have already taken place.
Regulation 12(9) provides that:
- “To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in paragraphs (5)(d) to (g).”
The ICO view is that the emissions referred to at 12(9) are not limited to emissions that have already taken place and could include past, present and future emissions.
The ICO has considered the wording of the EIRs, the European Directive 2003/4/EC which the Regulations implement, and the “Convention on Access to Information, Public Participation on Decision-making and Access to Justice in Environmental Matters”, known as the Aarhus Convention, and is satisfied that the wording of these documents does not limit the definition of emissions under 12(9) to those which have already occurred.
The Directive is worded “Member States may not, by virtue of paragraph provide for a request to be refused where the request relates to information on emissions into the environment.” (Article 4.2)
The Aarhus Convention is worded” “The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment” (Article 4.4).
The Commissioner’s line has also been informed by Article 7 of Aarhus, which emphasises the importance of information about future plans relating to the environment being made available. (see LTT83 for further discussion on this point).
Comment on Defra’s view
It should be noted that this line differs from that set out by Defra in chapter 7 of its “Environmental Information Regulations 2004 Detailed Guidance”. Defra’s view is as follows:
- “Regulation 12(9) does not include information on emissions that have not yet occurred, for example information on plans to reduce the likelihood of emissions. In this case the public authority would still be able to consider refusing disclosure under exception 12(5)(d) to (g) subject to the public interest test. “(para 7.5.1)
The Commissioner followed Defra’s line in its decision on case FER0072936, but has since reviewed this decision and has agreed the policy line that emissions do not have to have already occurred for 12(9) to apply. Later Decision Notices on cases FER0066052 and FER0073984 reflect the current position.