FOIA Section 39 Exemption

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 regulations under section 74 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.

(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).

Decision Notices

tbc