Utilities, contractors in firing line of environmental information rules

Proposals for implementing the 2003 EU Directive on public access to environmental information have been issued for consultation by the Scottish Executive.1 They suggest that public authorities and their contractors may be in for a rude shock unless they take careful legal advice on the new regime.

The Directive must be transposed into national law by February 2005. In the UK, this will be done by one set of regulations for Scotland and another for the rest of the country.

It is now almost two years since the Government consulted on draft implementing regulations for England, Wales and Northern Ireland (ENDS Report 331, pp 47-48 ). It used as a basis the common position on the Directive rather than wait for it to be adopted, arguing that this would "ensure early ratification of the Aarhus Convention," the pan-European treaty on which the Directive is based.

However, the regulations have fallen foul of the Government's policy to avoid "gold plating" of EU legislation, and are not now expected until next year.

Unabashed, the Government claimed earlier this year that it had "already signed up to the Aarhus Convention", as if this merited praise. True enough, it signed in 1998. But it has not taken the further step of ratifying, as 27 countries have now done, despite promising to do so in 2000 and again in 2003.

The new environmental information regime will be more liberal than that established by the original 1990 EU Directive on the subject. The key changes are those defining which bodies are affected, the introduction of a public interest test, and provision for appeals against public bodies' decisions - in Scotland, to the Scottish Information Commissioner.

The draft Scottish regulations are similar to those on which the consultation for the rest of the UK was held in 2002. More novel are parts of an accompanying draft guide and draft code of practice - especially in spelling out the potentially much broader scope of the new regime.

The draft guide points out what has been clear for a while - that utilities carrying out functions associated with public services such as water, sewerage, gas and electricity will be subject to the regulations. So will private organisations and public private partnerships associated with environmental functions such as waste disposal, water, energy, transport and even environmental consultancy, when these are carried out under the responsibility of a public body.

The guide adds that "a single contract between a government authority and a private organisation will not necessarily bring the private company within the scope of the environmental information regime although it may do so. Each case will need to be considered on its merits."

The draft code of practice takes matters further. It advises public authorities to reject contract terms purporting to restrict the disclosure of environmental information held by the authority and relating to a contract which go beyond the restrictions permitted by the regulations. "Scottish public authorities cannot 'contract out' of their obligations under the regulations," it cautions.

The guide also advises authorities to reject contractual clauses relating to the terms, value and performance requirements of contracts wherever possible. Where, "exceptionally", this cannot be done, a schedule identifying the information that must not be disclosed should be appended to the contract - though care will be needed in drafting the schedule since it could be overriden by the regulations.

Authorities are also advised not to agree to hold information "in confidence" when it would not pass the confidentiality tests under the regulations.

Indeed, they are advised not to accept information from third parties in confidence unless it is needed in connection with any of the authority's functions, and would not otherwise be provided. "Even in these circumstances," the guide says, "it will be necessary to explain the relevance of the public interest test and the fact that there could be circumstances in which the public interest in responding to a request outweighs the desire for confidentiality of a third party."

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