A few weeks ago, the Information Commissioner (ICO) deemed Heathrow airport, and energy generators and suppliers to be ‘public authorities’, meaning anyone can ask them to disclose environmental information that they hold under the Environmental Information Regulations (EIR), with limited grounds for refusal.
Five years ago a similar decision was made about water companies.
Organisations such as Fish Legal (the Angling Trust’s legal arm) and Friends of the Earth told ENDS they had made requests of water companies under EIR, with varying degrees of success. They said there was a large variation in what information individual firms were willing to part with and which exemptions they attempted to apply. They added that it was often difficult to find out how to submit a request at all.
Fish Legal is also waiting for the result of a prolonged challenge to a refused EIR submitted to energy firm EON.
Overall, experts ENDS spoke to had mixed feelings about the ability to access environmental information in recent years. Some felt government departments were more transparent than arms-length bodies like the Environment Agency while others had the opposite impression.
But there was a general concern that access is inconsistent across the UK. National statistics on the Freedom of Information (FOI) Act and EIR seem to corroborate this, finding a “wide variation” in the outcome of requests across monitored bodies and what appears to be growing reticence to give out information.
In 2012, DEFRA granted 66% of resolvable EIR and FOI requests in full and withheld just 17%, compared with 40% granted, 24% partially withheld and 36% fully withheld in 2018. In the latest period for which data is available - the third quarter of 2019 - just 21% were granted.
The former energy and climate department DECC granted 38% and withheld 31% in 2012. In 2018, its successor BEIS granted 35% of requests and fully withheld 43%.
But these are by no means the worst performers in government. The Cabinet Office, the former Brexit department DexEU and the Department for International trade all typically grant less than a quarter of requests.
Geoff Hardy, advice solicitor for Fish Legal, pointed out that it was not just about accessing information but the ability to do so in a timely fashion. His organisation often investigates water pollution incidents so speed is of the essence when trying to avoid damage and hold perpetrators to account on behalf of members. Hardy felt that FOI was sometimes used by regulators as a delaying tactic to fob off requests for information.
IEMA chief policy adviser Martin Baxter suggests a lack of capacity within government linked to Brexit may have contributed to difficulties in responding to information requests. “There’s been significant pressure to bring forward legislation or new policy and to prepare for EU exit. Not knowing exactly what was happening and therefore having to have multiple contingencies meant that some things weren’t considered necessarily priorities.”
He sees the Environment Bill, which is currently going through parliament, as an opportunity for government to be more transparent and creative in its reporting. The bill requires the Secretary of State to prepare annual reports on the implementation of the current environmental improvement plan (EIP) and progress towards targets. The Office for Environmental Protection (OEP) must also prepare an annual report that evaluates the government’s progress.
Both these sets of reports must be laid in parliament so will be open to political and public scrutiny. “I would expect it to take a little bit of time to settle down, but nevertheless I would hope that it does provide the basis for a bit more transparency about overall performance,” says Baxter.
Baxter adds that the OEP will likely have the ability to enforce a public authority’s duties to comply with their functions. “So if they are required to make information available - under FOI or EIR - then potentially the OEP potentially can take action about the way access to information is being dealt with by a public authority.”
However, he notes that further devolution after Brexit could mean different parts of the UK take increasingly different approaches to reporting and transparency. “That’s something that needs good coordination and collaboration to ensure cohesion.”
On the flip-side, a group of NGOs expressed concern last year about secrecy provisions in the bill that would force the OEP to withhold information about organisations it is investigating,
It is important to note that leaving the EU does not change everything. The UK remains a signatory to the Aarhus Convention on access to environmental information and justice, although it has long been criticised for not implementing the rules properly. Other international environmental conventions, many of which have their own reporting duties, will also continue to apply.
DEFRA did not respond to a request for comment for this article.