Requesting environmental information from the Environment Agency – be careful what you ask for!

A recent decision of the Information Commissioner is an important reminder of the need to be careful about the amount of information being requested of a public authority, where the resource implications of providing that information may render a request being refused because it is ‘manifestly unreasonable’ under the Environmental Information Regulations (EIR).

This article looks into the case in detail, explores manifestly unreasonable requests and points out the Information Commissioner’s decision.

The case

On 11 December 2023, the complainant wrote to the Environment Agency, requesting the following information: 

• The agency’s existing internal policy, guidance or instruction documents issued to officials or officers of the agency documenting the agency’s enforcement strategy and priorities in relation to water pollution incidents.
• The agency’s briefing document to staff and officers issued in November 2021 in relation to low-impact water pollution incidents.
• All internal policy or guidance documents, including any internal instructions or briefing documents, issued to officials or officers of the agency outlining its enforcement strategy and priorities between 2013 and present in relation to water pollution incidents. 
• A list of all enforcement undertaking offers, including details of the content and scope of those offers, between 2010 and present that the agency had received, accepted and rejected. 
• For enforcement undertaking offers rejected by the agency, a list of those offers that resulted in a successful prosecution and details of any associated fines and/other sanctions, and an unsuccessful prosecution.

The agency responded, advising that it would take around 34 hours to provide the requested information so it considered the request to be manifestly unreasonable under the EIR. 

The complainant disagreed that the information requested concerning internal enforcement policies was manifestly unreasonable, but they submitted a refined request to agency concerning enforcement undertakings.

Following an internal review, agency wrote to the complainant, maintaining its reliance on regulation 12(4)(b) of the EIR to refuse the refined request. Regulation 12(4)(b) of the EIR states that a public authority may refuse to disclose information to the extent that the request for information is manifestly unreasonable.

The complainant contacted the Information Commissioner to complain about the way their request for information had been handled. During the Information Commissioner’s investigation, the agency wrote to the complainant and disclosed some of the requested information, disclosing this information had not reduced the number of hours it would take to respond to the remainder of the request. 

Manifestly unreasonable requests

There is no definition of ‘manifestly unreasonable’ under the EIR, but in the Information Commissioner’s opinion, manifestly unreasonable implies that a request should be obviously or clearly unreasonable. One such way a request could be manifestly unreasonable is if a public authority is able to demonstrate that the time and cost of complying with the request is obviously unreasonable. 

Regulation 12(4)(b)1 of the EIR exists to protect public authorities from exposure to a disproportionate burden in terms of the amount of time and resources that they have to expend in responding to a request. 

Under section 12 of Freedom of Information Act, the Environment Agency would be entitled to refuse any request that would involve more than 24 hours of staff time to comply. There is no set limit beyond which a request becomes manifestly unreasonable. 

Whilst the Freedom of Information Act cost limit provides a useful benchmark, the Information Commissioner would normally expect a public authority to incur a higher burden when dealing with a request for environmental information. The public authority should also take into account the resources at its disposal and the public value of the request before relying on this exception. 

The Environment Agency raised the following points:

• The agency’s original time estimate to respond to the information request was 34 hours, but it later realised that this did not fully take account of the depth of the request. It recalculated that it would take over 56 hours to provide the requested information. 
• Its national teams create policy, guidance and instructions to provide a national steer, based on funding and priorities from government and its national key performance indicators. 
• The request for internal policy, guidance and instructions relating to ‘water pollution incidents’ is a broad term which covers many subjects, including but not limited to: agriculture, sewage, groundwater, water industry, industrial processes, installations, landfill and incident response. It explained that there would be separate guidance, policy and instructions for each of these business areas, driven by the funding and priorities for each sector. 
• The inclusion of briefings also brings into scope business boards and the National Civil Sanction Panel. This will include legally privileged data which the agency would have to review in detail to apply any relevant exceptions. Since it initially scoped the request, the agency now considered it would need more time complete this part of the request. 
• The Environment Agency routinely published lists of accepted Enforcement Undertakings (EUs) on its website - initially on the EA’s own website and then on the GOV.UK website, which superseded its own. Previously each list was only made available for a limited period, usually one calendar year, until it was replaced by a new list. However since February 2023, the agency changed its practice from replacing lists to adding new EUs to the previous list. This means that the format of information available on GOV.UK for current EUs will not be the same as the format of information as for previous years which have been withdrawn. Consequently, the agency explained that providing all accepted EUs in the format requested ‘including details of the content and scope of those offers’ would be a considerable and burdensome undertaking. 

The Information Commissioner’s decision

In his decision, the Information Commissioner acknowledged that there’s a great deal of public concern and interest in water pollution and associated enforcement measures. The information requested therefore does have a purpose and a value. He noted however, that the Environment Agency had stated that it routinely publishes information about enforcement undertakings and that, during the course of the investigation, it has signposted the complainant to information in scope of the request that is readily available. 

Therefore in the circumstances the Information Commissioner did not consider that this level of burden can be justified, and he didn’t consider complying with the request would be an appropriate and reasonable use of agency’s resources. 

The Information Commissioner was satisfied that agency met its obligations under regulation 9 of the EIR (advice and assistance).

However, the Information Commissioner decided that the agency had breached regulation 11 of the EIR by failing to carry out an internal review of its original decision with regard to the information request within the statutory time limit of 40 working days.
  
Either party has the right to appeal the Information Commissioner’s Office decision to the first-tier tribunal.

For further information, please contact the energy and resource management team.