Thursday, 8 October 2015

AIE: The FOI alternative you've probably never heard of

Most people have heard of the Freedom of Information Act, and how it can be used to open up the work of public bodies to public scrutiny. But if you've tried to get information under FOI, and been frustrated, here's another way of getting information that might just get you what you want.

What has the European Union ever done for us? Well, when it comes to access to information, we have two things to thank Europe for. One is Data Protection. The other is one you've probably never heard of.

Based on EU Directive 2003/4, the Access to Information on the Environment regulations (AIE) provide a way of getting information from public bodies that's completely separate from FOI. As European Union legislation, it has to be transposed by each country into their own laws. They can't just make up their own version: they have to follow the directive (though this doesn't stop them from trying, though). In this case, your right to information is guaranteed from Brussels.

Here's a simple example of why this makes a difference. When the UK Supreme Court finally confirmed that the letters to Ministers written by Prince Charles should be released, the government responded by changing the FOI Act to ensure future disclosures would be prevented: no more access to royal missives for the great unwashed.

But not so fast. The Prince is a landowner with a great interest in farming, buildings and environmental issues - and if he continues to write on such subjects, the public can ask about them under the UK form of the directive (Environmental Information Regulations, or EIR), because that's law that comes from Brussels, not Westminster.

What Can You Ask For?

The most important difference between AIE and FOI is that it only refers to the environment. You can't get any other sort of information using this. But 'environment' covers a very wide range of things: air, water, land, buildings and other structures, organisms, emissions, discharges, noise. And it's not just physical materials - it can relate to plans, policies or activities. That actually covers a lot: if the information you are looking for has a real impact on the environment, it may be accessible.

Incidentally, if you're looking for information in Northern Ireland, you have no choice but to use the regulations; environmental information is excluded from FOI. In the Republic, though, you have a choice of regimes. It's up to you which you use. You almost certainly won't be told that, though - ignorance of the system is amazingly common.

What Are The Advantages of AIE?

So the information you want is environmental. Why not just use FOI? There are several good reasons.

The AIE regulations cover information held by public authorities. Unlike FOI, the government cannot exclude bodies simply on the basis that they don't want them covered. So a range of organisations which are not accessible, or are only partly accessible, under the FOI Act because they are commercial bodies or have security information (such as NAMA, the Central Bank, and the Garda Siochana) are covered by the regulations.

Many of these bodies probably have little environmental information. But some certainly do - such as Coillte, Iarnrod Eireann, the Dun Laoghaire Harbour Company - and the only way to get information from them us using the regulations.

If you're not sure whether an organization is covered, there's no point doing a search on their home page. Many have no mention of the regulations, either because they don't know about them or really don't want to encourage questions. Some will go to extraordinary lengths to evade coverage - NAMA spent a small fortune in taxpayers' cash on a spurious claim not to be a public authority.

There's no absolutely clear cut definition of what a public authority is, but if it's an organization performing a public function, or a company operating or administering on behalf of the public, it's probably covered. The only clear exclusion is for the 'judicial and legislative functions' and even in this case, not all the work of the body may be excluded.

It's a small point, but given that organisations sometimes fight tooth and nail to resist disclosing information, you can often save money by using AIE to get access. This arises because, if you need to appeal to the Information Commissioner to get your rights, under FOI you need to fork out €30 for an internal review first - which is highly likely to confirm the original refusal. Under AIE there's no charge for a review. You can then proceed to appeal to the Commissioner (which will still set you back €50, but it would be €75 under FOI).

Additionally, under AIE, authorities cannot charge you for searching for a document (unlike FOI, where they can charge if it costs them more than €101 and can refuse if it costs more than €700). They can charge a reasonable fee for copying and postage. This should not be a lot, especially if you ask for the information to be scanned and emailed. 

Time period
The FOI Act limits access to records before a certain time period (this differs according to the organization). Earlier records are not covered, and unless they've been transferred to the National Archives, this makes them inaccessible. No such restrictions exist under the regulations.

If you've provided a public authority with intimate personal details, or disclosed some information your business rivals would love to have, it's perfectly reasonable to expect this to be kept secret unless there's a very good reason to disclose it. Like FOI, the regulations allow for authorities to argue for withholding if it can be genuinely defended; these grounds are known as 'exceptions'. These are broadly similar to the 'exemptions' under the FOI Act; often - but not always - it's a little harder to refuse information under the regulations. And if you're asking about emissions into the environment, you cannot be refused at all.

What To Do Next

If you're looking for information that has a substantial bearing on the environment, you should be seriously considering AIE as an alternative to FOI. If you do, though, it's worth reading up carefully on the subject.

The most useful practical source of information is the Department of the Environment.

Making sure public authorities follow the rules is the job of the Commissioner for Environmental Information. This site contains decision notices which show how the process works - you can see how cases have been argued and decided. The Commissioner - who is actually the FOI Information Commissioner wearing a different hat - produces an annual report that's worth looking at.

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