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Frequently Asked Questions


FORM AND FORMAT

1. Must the competent authority provide information in the form or format requested?

Yes, providing it is reasonable to do so and unless the information is already publicly available and easily accessible to the applicant in another form or format. However the competent authority, in its own name or on behalf of another public authority, may in cases consider it reasonable to provide this information in another form or format, giving reasons for doing so.

2. What do "form" and "format" mean?

The following are examples of different forms and formats:
(a) hard copy
(b) electronic copy
(c) database
(d) opportunity to inspect the information
(e) large print

3. Do applicants have to state their preferences when the initial request for information is made?

No, the applicant can ask for the information to be provided in a certain form/format at any time before the information has been sent to them. The time at which the preference is stated may be taken in to account when determining whether it is reasonable or not (see question 4).

4. When would it be 'reasonable' to provide the information in a different form/format to that requested by the applicant?

There may be situations where it would be reasonable for the information to be provided in a different form/format to that requested by the applicant, for example:
(a) if the applicant asks for the information to be provided in alternative form/format, such as a summary instead of a redacted copy of the original document at an unreasonably late stage (authorities must respond to the applicant within 30 working days),
(b) if the information requested is contained in a particularly old document where compliance with the requested form/format would have a detrimental effect to the original, such as photocopying a fragile document
(c) if the amount of work required to provide the information would be excessive



5. What should be considered when trying to determine whether information is 'publicly available' and 'easily accessible' to an applicant?

When deciding whether information is publicly available the types of factors you should take into account are:
(a) whether the information is made available in the competent authority's own public register or that of another public authority, accessible via its web site etc
(b) whether the authority is required to provide that information under the provisions of any other law.

When deciding whether the information is easily accessible to an applicant examples of the types of factors you should take into account are:
(a) whether any alternative access to the information requires any payment by the applicant,
(b) if the information is available on the web, if internet access is available to the applicant,
(c) the location of the applicant,
(d) the mobility of the applicant,
(e) any disability the applicant may have.

It may be appropriate to contact the applicant to determine whether the proposed form/format is easily accessible to them.

When considering the above, authorities should bear in mind that the information must be publicly available and easily accessible to an applicant. Also, each applicant must be considered individually and each person's particular circumstances must be taken into account.


6. Should the competent authority contact all applicants to determine what form/format would be preferable?

It is not necessary to contact every applicant to ascertain whether they have a preference. Normally the reply can be sent using the same media as the request unless otherwise specified. However in situations where the fee charged to the applicant may vary greatly depending on the form/format of the information, the applicant should be contacted, and the form/format confirmed.


7. What happens if the competent authority provides the information in an alternative form/format to that requested by the applicant?

If the competent authority does not provide the information in the form/format requested by the applicant the authority must explain the reasons for its decision, provide that explanation in writing, and inform the applicant of the appeals procedure.

TIME FOR COMPLIANCE

1. What is the time limit for responding to a request for information?

The competent authority must inform the applicant in writing whether it holds the information requested and if so, communicate that information to the applicant as soon as possible, and no later than 30 days after receipt of the request. [Regulation 4(1)]

Wherever possible, public authorities should attempt to respond within any tighter timescale indicated by the applicant.


2. When does the 'clock' start?

· The 30 day clock starts: the day after the competent authority receives the request, or
· The day after the competent authority receives more particulars (had the original request been formulated in too general a manner).


3. When is a request 'received' by the competent authority?
A request is 'received' when it is delivered to the competent authority, or when it is delivered to the inbox of the member of staff nominated by the authority to deal with such requests. The date of receipt is not the date the request is passed to the appropriate person for processing.

However, in respect of e-mails, where an automated 'out of office' message provides instructions on how to re-direct a message, the request would not be 'received' until it was re-sent to the alternative contact so indicated.

Public authorities may wish to consider the following good practice points:

It may be helpful to provide, and publicise, a separate e-mail address/telephone number for access to information on the environment.

To cover periods of absence, it would be advisable for staff to use the automated 'out of office' facility for e-mails to provide alternative contact details.

Where an alternative contact is provided in an 'out of office' message, the contact should advise the original recipient of action taken in respect of the request.

It would be good practice to acknowledge receipt of requests and to refer to the 30 day time limit, so that applicants know their request is being dealt with.

Public authorities should give thought to their procedures for dealing with communications, where an addressee is unexpectedly absent.


4. What if the competent authority is unable to find the information requested, because the applicant has not provided enough details ?

The competent authority should ask the applicant to clarify his or her request. This should be done as soon as possible. There is a duty to provide assistance to applicants. This may include indicating the possible types of information held which might be covered by the request.

Where further details are required, the day after those details are received will be treated as the date from which the 30 day period begins.

The Code of Practice with respect to access to information on the environment goes on to suggest forms such assistance might take, for example

'providing an outline of the different types of information that meet the terms of the request.'

5. What if the request is particularly complex and voluminous?

The regulations allow for an extension of up to 30 additional days to the period for response if requests are particularly complex and voluminous. If the extension is claimed, the applicant should be informed. It may be helpful to develop a clear policy as to when the extension may be claimed.


6. When does the 30 day 'clock' stop?

If the public authority is charging a fee, where advance payment is required, the applicant has a maximum period of 30 days to pay. The 30 day 'clock' stops until the fee is received.


7. What if the competent authority needs more time to consider exceptions?

No extension is allowed to consider the exceptions.

PROACTIVE DISSEMENATION

The new Freedom of Access to Information on the Environment Regulations oblige the competent authority to look at the information it holds and identify that which falls within the definition of environmental information provided by the Regulations and, subject to exceptions, supply a copy of the information if so requested.

An additional but by no means lesser responsibility is to take "necessary" measures to ensure that environmental information is actively and systematically disseminated (with the focus being dissemination via electronic means), on an ongoing basis.


1 What do the regulations say?

(1) The competent authority shall take the necessary measures to ensure that environmental information is actively and systematically disseminated to the public, in particular by means of computer communication and, or electronic technology, where available.

(2) The information to be made available and disseminated shall be updated as appropriate.


2 How will it apply?

The requirement is laid upon the competent authority subject to the Regulations.

This obligation has two aspects; that the dissemination is active and systematic and that it is progressively updated. This requires the dissemination to be ongoing, with an active consideration of any new information to be included for dissemination. The words "actively" and "systematically" suggest therefore that authorities set in place a written policy for the consideration of any new environmental information it produces or obtains for inclusion within the active dissemination of information.

Regulation 10 (2) refers to information from Article 7 (2) of the Directive. In effect this means that as a minimum each authority subject to the Regulations will, (where it holds such information), be obliged to include the following:

(a) texts of international treaties, conventions or agreements, and of Community, national, regional or local legislation, on the environment or relating to it;

(b) policies, plans and programmes relating to the environment;

(c) progress reports on the implementation of the items referred to in (a) and (b) when prepared or held in electronic form by public authorities;

(d) the reports on the state of the environment ;

(e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment;

(f) authorisations with a significant impact on the environment and environmental agreements or a reference to the place where such information can be requested or found in accordance with the provisions of these regulations;

(g) environmental impact studies and risk assessments concerning the state of the elements of the environment referred to in Article 2 or a reference to the place where the information can be requested or found in accordance with the provisions of these regulations;

3 Electronic Dissemination

Regulation 10 (1) states that the competent authority needs to:

(a) ensure that environmental information is actively and systematically disseminated to the public by electronic means where available;

There is therefore a need for the competent authority to consider making environmental information available via the World Wide Web.

There is no requirement to make information available via electronic means where it was collected or collated prior to 17th May, 2005 when the new legal provisions came into effect.

4 What is necessary?

The Regulations make no distinction so far as the obligations laid upon authorities caught within its remit. The only distinction which may apply will rest in regulation 10 (1), in the definition of the "necessary measures" which need to be taken in order to comply with the organisation of information for active and systematic dissemination. It may be the case that it would be unreasonable for a smaller authority to go to the same lengths as a larger authority in order to comply with this aspect of the legislation. Much would depend up the nature, activities and resources of the authority concerned.

In carrying out this function it should also be borne in mind that the requirement is only for the authority to take "necessary measures". Suggested factors which may have effect on this may include the nature of the information held, the size and nature of the organisation, the amount of work and cost required in re-organising the information and the organisation's actual functions as regards the environment. This is not, of course, an all inclusive list, merely suggested factors which authorities may like to consider when deciding what course to take.

Consideration should also be given to authorities' ability to disseminate information quickly, where it may have an impact upon the health and safety of individuals.

5 Good Practice Recommendations

A question arises as to what may be considered to be necessary measures towards compliance with this section in general. Certainly all organisations should take any steps necessary to conform to the environmental information regulations code of practice.

Beyond publishing the minimum requirements as listed above, the authority should, at the least, carry out an information audit so it is aware of the environmental information it holds, and they should then actively consider whether it is appropriate to include this information within their publication scheme as part of their duties under this section.

ASSISTANCE ON ACCESS TO ENVIRONMENTAL INFORMATION 

The Freedom of Access to Information on the Environment requires the competent authority to provide assistance to applicants. The procedural code of practice states what level of procedural service it would be good practice for public authorities to attain.

The provision of assistance is a wide-ranging duty, and has the potential to be relevant to most, if not all, stages of the request process. Assistance can simply be seen as the means by which the competent authority engages with an applicant in order to establish what it is that the applicant wants and, where possible, assists them in obtaining this. In effect, it provides for good customer service.

This document is split into three parts:

Part A - General issues

1. How does the competent authority judge what is a "reasonable" provision of assistance?

The competent authority should adopt a flexible approach and treat each application/potential application for information individually. In many straightforward cases, the nature of the assistance to be offered will be clear at the outset. In other cases, discussion with the applicant will be necessary to establish what assistance might be appropriate, and therefore reasonable. Once a request has been made this should be addressed promptly as the 30-day clock will be ticking (the majority of requests have to be responded to within 30 days at the very latest, unless it is justified to extend this by another 30 day period). In general there will be no additional burden involved in the provision of assistance as it is essentially a matter of good customer service. Consequently, much of the time, the duty to provide assistance under the regulations will be fulfilled by the delivery of an authority's usual customer service standards.

Examples of what is reasonable may include:

  • advising an applicant of their rights under the regulations;
  • assisting an applicant to focus their request, perhaps by advising on the types of information available within the request;
  • advising an applicant if information is available elsewhere, and explaining how to access this;
  • keeping an applicant advised of progress with regard to their request.

In all cases, it is strongly recommended that early contact is made with an applicant and that any advice and assistance should be delivered in a clear and intelligible manner.

2. In order to offer advice and assistance to an applicant, is it legitimate to enquire into the reasons why the request has been made?

No. The purpose of providing assistance is to help an applicant to exercise their rights under the regulations; it cannot be the means by which the competent authority seeks to discover the reasons for a particular, or potential, application. However, staff of the competent authority should bear in mind that regulation 4(2) of the regulations does allow them to request further information from the applicant if the original request is formulated in too general a manner. Paragraph 9 of the procedural code of practice provides an indication of the types of assistance that can be offered so that the applicant can describe the information they are seeking.

Whilst it will often be good practice to make contact with the applicant as soon as possible after the request is made, the competent authority shall be sensitive to the circumstances of the applicant when considering the appropriate method of contact. For example, requests for information may be made in the context of complaints against the public authority. In such cases it may be inappropriate to contact an applicant by telephone - which would otherwise be the preferred means of establishing early contact - if this would give the impression of the competent authority exerting undue pressure on the applicant.

3. Is the competent authority limited to providing the assistance highlighted in the code of practice in order to comply with the regulations?

Conformity with the assistance requirements detailed in the procedural code of practice will ensure compliance with regulation 4(2) of the regulations, and therefore fulfil the competent authority's legal obligations. However, in terms of best practice, it may be possible to provide assistance that exceeds the requirements of the code of practice. The circumstances of each case will determine the most appropriate course of action, which again emphasises the need for staff of the competent authority to adopt a flexible approach.


Part B - Potential Applicants

4. In what circumstances might the competent authority offer advice and assistance to people who propose to make a request?

Circumstances may include: 

Where someone has made it clear that they intend to make a request for information. Examples of assistance in such cases will include explaining the types of information the authority holds and charging policy of the authority, and whether the different form and formats which may be requested may affect the charging. Some information may already be available through the competent/public authority's public register; if so, the applicant should be advised of this.

In addition to the above, public authorities should consider what information can be made available on a proactive basis which would assist people in the event of them making a request for information at some time in the future. General promotion of the right to access information via the public authority's website is one example of this.


Part C - Once a request has been received

5. Which staff within the competent authority should have responsibility for providing advice and assistance once a request is received?

A request for information under the regulations can be received anywhere in an organisation it is important that all staff whose role brings them into contact with the public and other organisations are able to identify a request for information and provide appropriate advice and assistance to applicants where possible. The authority shall at all times have a nominated member of staff to deal with such requests for information.

6. Once a request has been received, does the 30 day period stop whilst the competent authority offers advice and assistance to the applicant?

If the request has been formulated in such a general manner that the competent authority is unable to distinguish what information the applicant is requesting, the competent authority is able to ask for clarification from the applicant. In this situation, the 30 day clock stops and re-starts when further clarification from the applicant is received.

In all other cases of advice and assistance, the 30 day clock does not stop.

For further information regarding timescales please see guidance document "Time for Compliance".

7. What further information can be requested by the competent public authority to assist it in identifying and locating the information requested by an applicant?

In cases where more information is required, an applicant should be contacted as soon as possible (the procedural code of practice suggests that contact is made by telephone, fax or e-mail), and public authorities should be prepared to explain why they are asking for more information. Paragraph 9 of the code of practice gives examples of assistance that may be appropriate, but public authorities should be flexible in this regard.

As discussed in the answer to question 2, the code of practice stresses the importance of not giving the impression that the competent authority is enquiring into the reasons behind a request:

Authorities should be aware that the aim of providing assistance is to clarify the nature of the information sought, not to determine the aims or motivation of the applicant. Care should be taken not to give the applicant the impression that he or she is obliged to disclose the nature of his or her interest or that he or she will be treated differently if he or she does.

8. If an applicant does not respond to the advice and assistance that is provided by the competent authority, is the authority obliged to offer advice and assistance a second time?

In most cases the competent authority will not be required to contact the applicant a second time, for example where the applicant simply elects not to follow the assistance offered by the authority. Paragraph 17 of the code of practice provides the example of an applicant failing to clarify a request following assistance offered by the authority. However, there may be cases where there is genuine doubt whether the assistance has been received by the applicant. Here, it would be sensible for the competent authority to re-issue the advice and assistance.

It is good practice for the competent authority to keep a record of the assistance that has been provided; this would assist in the event of any dispute that such advice was in fact given.

9. If the competent authority estimates that complying with the particular form/format requested by the applicant will greatly increase the charge to the applicant what advice and assistance should be provided?

The competent authority may contact the applicant and explain what the options are and the related charges. The applicant may then make an informed decision as to the form and/or format in which they wish to have the information provided.

10. If an applicant requests that information be provided in a particular form/format, but it is not reasonable for the competent authority to do so, what advice and assistance should be provided?

The competent must contact the applicant and explain why it is not reasonable to provide the information in the form and/or requested. If there is a choice of alternative forms/formats, the authority can explain these options and the applicant may then make an informed decision.

11. If an applicant indicates that they are not prepared to pay the fee requested by the competent authority, is the authority still obliged to offer any advice and assistance?

In these circumstances the competent authority should consider what, if any, information may be provided to the applicant free of charge. It might also be good practice for a public authority to consider assisting in refocusing the request by explaining what sorts of information may be available for a lesser fee.

12. If the competent authority receives a request which it believes to be manifestly unreasonable, is there any assistance that can be given?

It may be possible for the competent/public authority to provide part of the information which falls within a manifestly unreasonable request. Therefore the authority should speak to the applicant to determine what part of the request is most important to them, and determine whether this could be provided.