FOIA Section 39 Exemption

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Section 39: Environmental Information

Section 39 exempts environmental information whose disclosure is governed by the Environmental Information Regulations 2004. The Environmental Information Regulations 2004 implement an European Directive and establish a specific regime to enable individuals to access environmental information, including exemptions from that right of access. The disclosure of environmental information must be considered under the Environmental Information Regulations: section 39 therefore exempts this from the rights of access under the FOI Act.

Key points:

  • If information is environmental information and is exempt under section 39, public authorities must consider its disclosure under the Environmental Information Regulations 2004; the Regulations may require the disclosure of information which would otherwise have been exempt under the FOI Act.
  • Section 39 is subject to a public interest balance, but this should not be considered independently of the operation of the provisions in the Regulations.

What the law says

39 Environmental information

(1) Information is exempt information if the public authority holding it—
(a) is obliged by environmental information regulations to make the information available to the public in accordance with the regulations, or
(b) would be so obliged but for any exemption contained in the regulations.
(1A) In subsection (1) “environmental information regulations” means—
(a) regulations made under section 74, or
(b) regulations made under section 2(2) of the European Communities Act 1972 for the purpose of implementing any Community obligation relating to public access to, and the dissemination of, information on the environment.
(2) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).
(3) Subsection (1)(a) does not limit the generality of section 21(1).

ICO Lines To Take

Relevant Lines to Take
  • LTT119 - Inter-relation between s21 & s39 FOIA and the EIRs - 08/11/2008
  • LTT107 - No prejudice / adverse effect test for class based exemptions / exceptions - 20/06/2008

Decision Notices

Complaints upheld / partly upheld (P) Complaints not upheld


  • FER0276297 - City of Westminster Council - 19/04/2010
  • FS50255080 - Ealing London Borough Council - 19/04/2010
  • FS50255077 - London Borough of Camden - 19/04/2010

Includes DNs up to: 26 April 2010

Freedom of Information Act 2000
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